1. Carla Hayden Makes History
On September 14, Carla Hayden was sworn in as the 14th U.S. librarian of Congress, the first African-American and the first woman ever to hold the post—and, importantly, the first professional librarian to be appointed in over 60 years. But like all things political in the U.S. today, Hayden’s confirmation wasn’t without a little drama—and it was very nearly derailed.
After sailing through her April 20 Senate hearing and winning unanimous approval from the Senate Rules Committee on June 9, Hayden’s nomination mysteriously stalled. Eventually, it was revealed that a group of Senate Republicans had placed an anonymous hold on her nomination and intended to deny Hayden a confirmation vote. With the Senate just days away from a planned recess, and with an election to follow after that, the delay placed Hayden’s nomination in serious jeopardy.
But on July 13, an unlikely hero emerged—Republican Senate Majority Leader Mitch McConnell. In a surprise move, the Kentucky Republican ignored the anonymous holds from within his own party and called for a vote. It’s worth pointing out that any of the anonymous objectors could still have stopped the vote simply by coming forward with a formal objection, on the record. But none chose to step from the shadows. Hayden was easily confirmed, 74 to 18.
On September 14, Chief Justice of the United States John Roberts administered the oath of office to Hayden, who was sworn in on the Bible used to swear in presidents Abraham Lincoln and Barack Obama, which was held by her mother, Colleen Hayden. In a show of bipartisan support, House Speaker Paul Ryan stood beside her. “As a descendant of people who were denied the right to read,” Hayden remarked, “to now have the opportunity to serve and lead the institution that is our national symbol of knowledge is a historic moment.”
Among other firsts for Hayden: she is the first librarian of Congress to be appointed in the Internet era. Her predecessor, James Billington, a Reagan appointee, took the post in 1987. Hayden is also the first librarian to be term limited. Over the years, the job had morphed into a lifetime appointment, but after Billington announced his retirement, Congress voted to limit the job to a 10-year term, subject to reappointment.
A highly respected and accomplished librarian, Hayden, had served as ALA president from 2003 to 2004, had been the CEO of the Enoch Pratt Free Library in Baltimore since 1993. And she will need all of her management skills for the job ahead. Long criticized for languishing in the digital age, the Library of Congress is in need of modernization, both in terms of its technology and its mission. But librarians who know Hayden say that President Obama has tapped the right person for the job.
“Hayden is well equipped to naturally reposition LC as not just a research library,” observed PW library columnist Brian Kenney shortly after Hayden’s confirmation hearing, “but a library in service to the American people.”
Still, Hayden’s toughest battles may be political. Whether it be Congress’s strange inclination to legislate against subject headings it deems politically correct or simmering battles over copyright policy (see below), there is no question that Hayden has entered a tense political atmosphere, made even more fraught by the unpredictability of a newly elected Trump administration.
But as she showed in 2003, when she clashed with Attorney General John Ashcroft over the Patriot Act, Hayden has never been one to shy away from a challenge. And in her first major move as librarian of Congress, she showed that she is not afraid to make bold decisions (see #6 on this list).
Like the rest of the country—indeed, the rest of the world—the library community is still grappling with the implications of a Trump administration. But in the days following the election, one thing became clear: many librarians are anxious about the future.
Although he never spoke about libraries directly on the campaign trail, as a candidate Trump certainly raised a number of red flags for librarians. He railed against the press, suggested that the U.S. needed to “close up" the Internet to fight terrorism, and advocated for public surveillance. He professed not to be a reader of books. And as president-elect, his moves so far suggest that he supports gutting the Federal Communications Commission, which administers the E-rate program, the government’s largest educational-technology initiative, responsible for connecting many of the nation’s schools and libraries to broadband. Trump is also said to favor rolling back Net neutrality. And his nomination of Betsy DeVos for education secretary has raised concerns among school librarians.
But concerns about a Trump administration run deeper than policy or funding questions. After a spate of disturbing incidents around the country following the election—including at the Evanston, Ill., Public Library, where books on Islam were defaced with swastikas and hateful messages—many librarians are wary of their most fundamental values coming under attack, among them intellectual freedom, diversity, and social responsibility.
Shortly after the election, a draft memo from ALA leadership was mistakenly released in which ALA leaders said that they looked forward to working with a Trump administration to meet common goals. The draft memo was swiftly recalled, but not until after it had touched off a strong reaction from ALA members, and many library bloggers. On her blog at Inside Higher Ed, Barbara Fister, librarian at Gustavus Adolphus College in St. Peter, Minn., called the ALA draft memo a “cringing act of self-serving ‘please-don’t-hurt-us’ rhetoric.” Librarians cannot partner with an administration that “won on a platform that was openly racist, Islamophobic, and homophobic,” she added. “Everything libraries stand for is on the line.”
The 2016 ALA Annual conference, held June 23–28 in Orlando, Fla., was the lowest-attended ALA Annual Conference in more than 20 years. But it turned out to be one of the most important and inspiring ALA conferences ever.
With the city of Orlando still reeling from the hate-fueled mass shooting at the Pulse nightclub on June 12, librarians arrived with a message of hope and solidarity, and ALA attendees rolled up their sleeves—some literally—to help the community through its grief. Among their many gestures of support, librarians participated in a two-day blood drive , held a moving memorial for the 49 victims of the Pulse shooting, and fanned out to volunteer at numerous sites throughout the city. And in support of free speech, a number of librarians were recorded outside the exhibit hall reading from banned LGBTQ-themed books for an ALA-sponsored advocacy campaign.
In the wake of the still-fresh tragedy—and in the context of a bitterly divisive political campaign—the ALA’s timely main program put library values on display. Highlights included a raucous opening keynote from scholar and author Michael Eric Dyson. Fresh from his sit-in on the floor of the House of Representatives, Rep. John Lewis delivered a message of hope and perseverance. And 16-year-old author and transgender-rights advocate Jazz Jennings spoke movingly of her fight for acceptance and inclusion from the auditorium stage.
In his talk, Lewis, who last month won a National Book Award for the third book in March, his graphic novel autobiography, earned a lengthy standing ovation, telling librarians there was “a moral obligation” to speak out in the face of great injustice and to “find a way to get in the way, to get in trouble, good trouble, necessary trouble,” just as he did during the marches of the civil rights movement in the 1960s.
The message in March “is that it doesn’t matter whether we are black or white, Latino or Asian, it doesn’t matter whether we are straight or gay,” Lewis said. “We are one people, with one family. We all live in the same house.... and through books, through information, we must find a way to say to people that we must lay down the burden of hate. For hate is too heavy a burden to bear.”
4. The Google Case Ends
At its April 15, 2016, conference, the Supreme Court declined to take up Authors Guild v. Google, effectively ending one of the defining copyright battles of the digital age thus far. At long last, Google’s scanning and indexing of tens of millions of library books to create a searchable index was legal.
But while Google ultimately prevailed in court, the years of litigation, observers say, took their toll. “The great irony,” observed Cornell law professor James Grimmelmann, “is that books have become something of an afterthought for Google.”
Although the legal case didn’t officially end until 2016, Google’s plan for books effectively died back in 2011, after Judge Denny Chin rejected a controversial settlement proposal amid opposition from a range of parties including foreign governments and the U.S. Department of Justice. And it’s worth noting that over the 11-year history of the litigation, which also included an unsuccessful suit against the HathiTrust, a coalition of Google’s library-scanning partners, the Authors Guild failed to win the opinion of a single judge—including two emphatic fair use decisions at the district court level, and two unanimous, equally emphatic affirmations from two separate panels of the Second Circuit.
Nevertheless, Authors Guild officials called the Supreme Court’s decision not to review the case a “colossal loss” for authors. In a statement, Authors Guild officials bemoaned what they called “the expansion of fair use” in the digital age, and suggested that the Supreme Court’s denial was “further proof that we’re witnessing a vast redistribution of wealth from the creative sector to the tech sector.”
But despite failing in the courts, the Authors Guild suit against Google might still impact a broader, and global, policy debate. And the theme voiced by the Authors Guild—that the tech sector is unfairly building value off of the backs of creators—has become an animating principle among the content industries.
For librarians, the final decision in the Google case makes them more confident about the status of their digitization efforts. But one question still lingers, perhaps the largest question of all: What greater good might have been achieved if the parties in this litigation had been able to come together in a less adversarial way?
5. GSU Prevails (Again) in E-Reserves Case; Publishers Appeal (Again)
More than eight years after it was first filed, a key copyright case, Cambridge University Press v. Patton, (known commonly as the GSU e-reserves case) is right back where it was four years ago—before the U.S. Court of Appeals for the 11th Circuit. In a 220-page remand decision, Judge Orinda Evans once again held that GSU’ faculty’s use of digitized course readings known as e-reserves was fair use, and declared GSU the prevailing party in the case for a second time. Months later, however, in August, the publisher plaintiffs once again appealed. And with neither party showing a will to settle, the case could be far from decided.
First filed in April 2008 by three academic publishers (Oxford University Press, Cambridge University Press, and Sage Publications, with the plaintiff costs paid by the AAP and the Copyright Clearance Center), the suit alleges that GSU administrators, including the university librarian, systematically encouraged faculty to offer students unlicensed, infringing copies of digitized readings as a no-cost alternative to traditionally licensed course-packs. Tom Allen, president and CEO of the AAP, has called the suit a “test case” that will “inform the application of fair use” in the academic setting. But so far, the test has not gone well for the publishers.
So, what happens on appeal in 2017? It’s hard to predict. In 2012, the 11th Circuit unanimously reversed and remanded the case back to Evans, with instructions to rebalance her four-factor fair use test. Which she did in her remand decision, arriving at roughly the same conclusion: fair use. But lawyers note that despite reversing in 2012, the 11th Circuit opinion actually affirmed much of Evans’s handling of the case. And one of the key questions going forward is how much of Evans’s decision will be reviewable. After all, anything that was decided in the first appeal is settled law, explains Cornell law professor James Grimmelmann. And anything that could have been appealed in the first appeal but wasn’t, he adds, is considered waived.
Of course, a larger question also looms: Will the final verdict in this case even matter by the time it is finally reached? Observers note that over the last nine years, the market has begun to address many of the issues at the heart of this case. Academic publishing continues to shift toward a licensed-access regime, for example. And the open-access movement continues to grow. For the publisher plaintiffs, “winning slowly,” Grimmelmann observed, is “just about as bad as losing quickly.”
6. Change at the Copyright Office
Just weeks into the job, Carla Hayden made her first big move as Librarian of Congress—and it was a doozy. On October 21, Hayden abruptly removed U.S. register of copyrights Maria Pallante from her job and reassigned her to a senior adviser position at the Library of Congress. Pallante, however, declined the assignment and officially resigned on October 24.
Pallante’s sudden departure was met with shock and dismay in the content industries, where Pallante was seen as a strong ally. And her removal stoked fears within those industries, including among publishers and authors, over the future of U.S. copyright policy. In Billboard, Robert Levine wrote that Hayden is “perceived to favor looser copyright laws” citing Hayden’s past role as president of the American Library Association, which he characterized dimly as “an organization that lobbies for greater public access to creative works, sometimes at the expense of creators.”
Pallante’s critics, on the other hand, have argued that the Copyright Office under her leadership was a “captured agency,” entirely beholden to the content industries. On the popular copyright blog TechDirt, Mike Masnick wrote that Pallante’s legacy as register is marred by a number of controversial positions, including her strong support of the ill-fated Stop Online Piracy Act (SOPA) and other “bad ideas” on copyright reform. “Today’s Copyright Office needs someone who isn’t just representing Hollywood’s viewpoint and recognizes that copyright itself is supposed to benefit the public first and foremost,” Masnick wrote, “something Pallante denies.”
But multiple sources told PW that Pallante’s removal wasn’t necessarily over differing views on copyright policy, but rather was a function of Hayden getting the Library of Congress’s house in order. After all, in a 2015 report Pallante strongly urged lawmakers to remove the Copyright Office from under the purview of the Library of Congress, and make her the head of an independent agency. Sources tell PW that Hayden couldn’t be expected to lead the Copyright Office forward with a subordinate pushing Congress for independence.
“If Congress wants to remove the Copyright Office, it can do so,” explained one source. “But for now, it is part of the Library of Congress.” Though for how much longer remains to be seen (see #7, below). In the interim, Hayden on December 16 put out a call for public comments on the "expertise needed by the Register of Copyrights." Comments can be made online, and are due by January 31, 2017.
7. Copyright Reform
After more than two years of hearings and testimony, House Judiciary Committee chairman Bob Goodlatte and ranking member John Conyers released their first public policy proposal for U.S. copyright reform in December. Their first salvo: a push to establish an independent, and autonomous Copyright Office.
In the proposal, the first to be presented to the House Judiciary Committee following a recently concluded review of the nation’s copyright laws, Goodlatte and Conyers, who led the copyright-review panel, concluded that an independent Copyright Office would be better suited to managing a 21st-century copyright regime. Under their proposal, the register of copyrights position would become a separate, term-limited post (10 years), subject to Senate “advise and consent” rules. Currently, the Copyright Office resides in the Library of Congress, and the librarian of Congress has sole discretion to hire or fire the register.
In addition to backing independence for the Copyright Office, Goodlatte and Conyers also proposed expanding the Copyright Office’s bureaucracy with new positions, including a chief economist, chief technologist, and deputy register, and also proposed to establish a small claims tribunal within the Copyright Office. The committee is now seeking written public comments on the proposal by Jan. 31, 2017.
The recommendations from Goodlatte and Conyers are not unexpected. Both legislators were supporters of recently-ousted register, Maria Pallante, who had adovacted independence for the Copyright Office. And their proposal follows two similar recent proposals in Congress. In July, Rep. Hakeem Jeffries, a New York Democrat, introduced H.R. 5757, dubbed the CASE Act (Copyright Alternative in Small-Claims Enforcement), which proposed the creation of a small claims tribunal. And, in June 2015, Rep. Judy Chu, a California Democrat, and Rep. Tom Marino, a Pennsylvania Republican, introduced the CODE Act (Copyright Office for the Digital Economy), which proposed an independent Copyright Office.
But while there is broad consensus that the Copyright Office is in dire need of modernization, there is sharp disagreement as to whether a separate, independent copyright bureaucracy is necessary. On one side, Chu and Marino’s 2015 proposal was strongly supported by the content industries. On the other, the library community, along with tech companies such as Amazon, Facebook, Google, and Netflix, opposed the move. “Establishing the Copyright Office as an independent agency does nothing to address its challenges,” ALA officials concluded in a statement. “Instead of independent authority, the Copyright Office needs resources—both in the form of funding and technical expertise.”
With a new administration set to take power, it is unclear how quickly copyright reform will be pursued by the incoming Congress, if at all. But in a joint statement, Goodlatte and Conyers said more policy proposals will follow. “It is time to move forward into the next stage,” the statement read.
8. EveryLibrary Launches ESSA Effort
When President Obama signed ESSA (the Every Student Succeeds Act) into law in December 2015, it was hailed by librarians as a big win. After years of advocacy work by various library groups, the new federal education law included significant and long absent support for school libraries. But in 2016, the hard work of implementing ESSA began—and the clock is ticking.
Under the law, each state is required to submit an ESSA Implementation Plan to the U.S. Department of Education by April 2017 for the school year beginning August 2017. And in order for school libraries to gain the full benefit of federal funding available under ESSA, each state will have to modify its existing education laws, administrative codes, and other rules and regulations to make them ESSA-compliant and grant-ready—no easy feat, says John Chrastka, executive director library lobby group, EveryLibrary. In fact, after so many years of getting no federal support at all, many state and local education agencies lack even the most basic legislative language, he told PW.
That’s why, with financial support from Rosen Publishing and help from other library organizations, EveryLibrary stepped up to help in 2016. With EveryLibrary’s significant experience helping library ballot measures succeed at the local level, EveryLibrary in 2016 is continuing to help library advocates across the country with state-specific, proven tactics for supporting school libraroies—and thanks to Rosen and other library groups, that help is completely free.
But with Trump’s victory and a new secretary of education in Betsy DeVos, bigger questions now loom over 2017. And EveryLibrary officials are urging library supporters to get engaged. “It is nearly definite that there will be a significant shift away from federal programs and funding that support libraries,” EveryLibrary officials wrote on their blog in November, “resulting in a greater burden placed on local and state government.”
9. SimplyE, and the State of Library E-books
In July, the New York Public Library rolled out its much-anticipated e-book app, SimplyE. The app seeks to solve a problem that has long plagued library e-book users, by simplifying the cumbersome process of checking out library e-books. Make no mistake—the app, by focusing on the user experience, represents a big step forward for those who borrow library e-books. But it also serves to highlight just how far the library e-book market has to go.
But let’s start with the good news. After years of complaints from library e-book users forced to wrestle with clunky interfaces and processes powered by a growing and diverse array of vendors, the SimplyE app offers users one simple interface for all ePub-based library e-books, regardless of vendor. And SimplyE looks and acts like any commercial e-book platform. It features highlighted titles with thumbnails of book jackets. And when you find a book that you want to read, it takes just a few clicks, three or less, and you’re reading. Well, sort of (more on that below).
Developed by a group called Library Simplified, a coalition of libraries and tech partners (with NYPL serving as lead partner), the app is based on open-source code and is available for virtually any public library or library system to use. And because it is open source, partner libraries are free to improve, tinker with, customize, and brand the app for their own library systems. And improvements are said to be underway.
But as the year comes to a close, user reviews in the Apple app store suggest there are problems. Overall, the app gets only about two stars, and more and more reviews cite bugs, or functions that aren’t working. But the bigger problem is that even when SimplyE works properly, it’s hard to get the book that you want, with wait times often stretching for months. For traditional library users, putting a book on hold is common and often no big deal. But with the app being downloaded by new library users, conditioned to expect immediate gratification by their online experiences (Amazon, Netflix, and Spotify, for example), will such long hold times turn them away from the library?
Meanwhile, it’s been a weird year for e-books in general. Consumer e-book sales have continued to decline, at least for traditional publishers, with some observers suggesting that the honeymoon period for digital reading may be over. In the library market, e-book circulation continues to grow, as one might expect given that more publishers now allow e-book lending. But, notably, the rate of e-book circulation growth in libraries is slowing.
Indeed, after a few years of progress on library e-books, the market now seems to be settling on a plateau. And that’s potentially dangerous. With so many free and cheap entertainment options now competing for consumer attention on our phones and tablets—social media, YouTube, magazines and news, self-published books and blogs, and hours of premium movies and TV, including a gold rush of high-quality original programming from companies such as Netflix, Amazon, and Hulu—libraries and publishers would be wise to explore ways to reduce the kind of friction that could drive readers away from books and the library. After all, as I observed in a column this summer, it would be a shame if SimplyE served mostly to highlight for users how frustrating it is to get an e-book from the library.
10. NYPL Labs in Limbo
For the last five-plus years, the New York Public Library’s NYPL Labs division pursued a mission based on a fundamental truth: that the Internet is now at the center of our information world. But in one of his first moves since coming aboard as chief digital officer in March 2016, Tony Ageh quietly shut NYPL Labs down.
In an official statement, NYPL officials said Ageh was “still setting priorities” and looking for a structure “to ensure the best possible digital strategy” for the library. But Ageh stressed that the “spirit” of NYPL Labs will be a part of the library’s future. “The library’s commitment to innovative projects that improve the public’s access to our collections is as strong as ever,” he said.
What that means in practice is less clear. NYPL officials declined to comment on personnel changes at the library, but told PW on background that the majority of the NYPL Labs team remains at the library. Without question, however, the library lost (and in some cases terminated) a lot of talent, and some key leaders.
Otherwise, NYPL had a pretty good 2016. In a June email to library cardholders, NYPL president Tony Marx reported that New York City officials had agreed to “baseline” a hard-won $43 million budget increase for the libraries, a huge victory that will expand services for all New Yorkers. And the former Donnell Library Center, now dubbed the 53rd Street Branch, officially reopened.
But the Donnell reopening also served to recall the past few years of controversy at the NYPL, over a secretive, and ultimately abandoned, strategic plan that included selling off key real estate holdings, and transforming the iconic Main Library at 42nd Street. Located on prime midtown real estate, the Donnell Library, once considered once of NYPL’s jewels, was sold to developers in 2007, before the strategic plan was scuttled by a public outcry. At the June 27 reopening, protesters were on hand to point out that regardless of how beautifully the new 53rd Street space might be designed, there is a lot less of it: the 53rd Street branch now occupies about 28,000 square feet in the basement of the Baccarat Hotel, compared to the former Donnell’s 97,000 square feet.
As 2017 opens, the library community will be watching as Ageh considers how to carry forward the NYPL Labs mission. What comes next will likely say a lot about where libraries are heading in the digital age. But as the protesters outside the 53rd Street Library this summer suggest, the public will also be paying attention. Whatever Ageh’s plans for NYPL’s digital future, he would do well to communicate that vision openly.