Maria Pallante took over as president and CEO of the Association of American Publishers in January 2017. In selecting Pallante, a former U.S. Register of Copyrights, the AAP pointed to her strong background in IP law and policy. Copyright protection has long been one of the main priorities of the AAP, and in a time when copyright issues have become more contentious, copyright protection is job one for the organization. Thus, in June 2020, the AAP coordinated a copyright infringement lawsuit by four publishers against the Internet Archive; in July, both sides filed motions asking for summary judgment, and last week reply briefs to those motions were made. More filings are due in October. PW caught up with Pallante to discuss the AAP’s reaction to ongoing copyright challenges, as well as other association initiatives.

For some time now, the AAP has made protection of copyright its top priority. Can you tell me how that decision was reached?

Copyright has been our top priority for more than five decades because it is the legal foundation of the publishing industry, but you are right that we’ve been unusually busy of late. That’s because the Internet Archive and its affiliate Library Futures have aimed a series of torpedoes at the Copyright Act, efforts that would irrevocably weaken the ability of authors to license their works, if not create them in the first place. Our board has prioritized these threats and takes them seriously, as should anyone who cares about the future of books.

When e-books first emerged, many publishers were concerned that their “frictionless” ease of use through libraries would lead to a decline in the sales of both print and e-books. That talk faded, but it seems to be a concern once again, with publishers seeing it as a reason e-book sales have not grown. Is that something that’s being talked about?

This is a fair observation, because e-book sales are definitely declining and e-borrowing is definitely exploding. Logically, the more seamless it becomes to download a digital copy for free without waiting, the more publishers will worry about the balance between their respective markets. They have a responsibility to their authors and their own sustainability to do so.

In a recent e-book study, the Federation of European Publishers proved the correlation between frictionless borrowing and consumer decline, and I don’t think anyone was surprised by that conclusion. But for copyright businesses, friction is an established calculation that goes far beyond libraries. It’s the reason we experience a constantly changing menu of streaming, subscription, and download services for music, movies, and video games, with continual adjustments to pricing, release dates, and wait times. These terms can be mystifying, indeed frustrating, from the outside, but they are designed to promote creative works within fiercely competitive environments.

I do think publishers have worked hard to provide e-books to libraries at the same time as consumer releases, because librarians are respected partners in a book’s success. As OverDrive reports, libraries achieved all-time records for digital loans in 2021 while lowering the average cost per title borrowed. Indeed, most licenses permit libraries to transmit e-books to patrons dozens of times under terms that are, all told, a fraction per-use of what consumers pay for restricted access, meaning no redistribution.

One thing I can say with confidence is that technology is constantly evolving, and therefore authors, publishers, and libraries, as well as booksellers, will continue to negotiate their respective agreements and budgets. Copyright markets don’t work very well if they’re stuck in time, which is why we no longer have eight-track cartridges in our cars.

What is your view of controlled digital lending, or CDL?

CDL is a baseless justification for infringement and antithetical to both copyright law and common sense. It was hobbled together by a small group of individuals with close ties to the Internet Archive, and for that reason it will always be associated with that defendant’s conduct. The law is clear that formats are distinguishable, meaning that no one—not a private person, public library, or pirate—may distribute digital bootlegs of tangible copies, whether they are ripping hardcover books, vinyl albums, or compact discs. It doesn’t matter if the defendant claims to manage a virtual bookshelf or maintains the physical copies, as made clear by cases in the music and movie space. Courts have decried such format shifting because it exceeds the first-sale doctrine and forces authors to subsidize activity that they did not license and cannot contain.

What I will say as a former policymaker is that there are important instances in which libraries and museums should be able to make copies of works in or for their collections—for example, to capture, preserve, or loan at-risk material. But activity like this does not require a new theory and moniker: it will already be governed by fair use and/or the detailed library exceptions in the Copyright Act. Neither Congress nor the courts has ever sanctioned a practice like CDL, because it strips authors of the benefit of their intellectual property, while permitting aggressors to prosper in their stead.

With the surge in book banning, what are some of the things AAP is doing to protect free expression and free speech?

It has been painful to see authors, librarians, and teachers targeted so capriciously, especially in instances where a few people appear to be deciding for the many. We have participated in two legal challenges in the past few months, a brief in Missouri in April and one in Virginia in July, both involving violations of Supreme Court precedent. The Missouri case is now on appeal, but the dismissal of obscenity charges in Virginia, which came down just before Labor Day, was a resounding affirmation that both writing and reading are constitutionally protected.

Relatedly, our education companies are working to uphold the accuracy and integrity of instructional materials as to history, race, and gender, and we are helping where we can. I do worry about the authors who are caught in the crosshairs, including those writing about LGBTQ+ issues—their books are so important and must remain discoverable no matter what.

What is the status of your diversity/equity/inclusion and climate and sustainability efforts?

We have added climate and sustainability issues to our global policy priorities, and we are about to announce our first vice president for DEI initiatives.

So much to do, so little time!