Must We Abide?

Posted Tuesday, March 15, 2011 - 09:00
D. J. Hoek

More and more, publishers, database providers, and other corporate content proprietors are taking steps to replace the traditional benefits of ownership with the rigorously controlled provisions of licensing. Known as terms of sale (TOS) or end-user license agreements (EULAs), these licenses uniformly stipulate who can (and can’t) use a certain product and how that product can (and can’t) be used. Such restrictions place alarming limitations on libraries’ ability to develop meaningful collections and to provide access in ways most suitable to their communities. Even more alarming, however, is the fact that we are doing nothing about it.

In “Read the Fine Print” (AL, Nov./Dec. 2010, p. 30), Meredith Farkas calls attention to the TOS used by Netflix and Amazon to control how their services and products may be used. Since Netflix’s DVD lending service is strictly for “personal and noncommercial use” and Amazon similarly “restricts digital content on the Kindle to personal use,” Farkas rightly observes that libraries currently circulating Netflix DVDs or Kindle e-books are in clear violation of those TOS parameters. Warning that such lending puts libraries (as well as the school districts, colleges and universities, companies, and municipalities they are a part of) at risk of legal action, she stresses, “In considering a new technology, it is imperative that a library understand what rules it must abide by.”

This cautionary advice is well warranted, and libraries that haven’t been reading license agreements definitely should be. But are these terms acceptable? How can a profession purportedly committed to providing unfettered access to information resources simply “abide by” restrictions that compromise our collections and services?

Libraries today must continually incorporate new technologies and deliver an expanding array of information and services in ways that are useful and convenient for patrons. In that light, it is entirely reasonable—even innovative—that some libraries have taken to using Netflix and Kindles. Though unquestionably violating license conditions, those rogue libraries are also upholding longstanding tenets of our profession.

Much has been said about the importance of libraries to democracy, and today this is as true as ever. In its interpretation of the Library Bill of Rights regarding access to digital information, services, and networks, the American Library Association has drawn a direct connection between free speech and the information a library is able to deliver, stating, “Freedom of expression encompasses the freedom of speech and the corollary right to receive information.” This assertion is then expanded: “Users have the right to be free of unreasonable limitations or conditions set by libraries, librarians, system administrators, vendors, network service providers, or others.” By equating the information libraries provide with the freedom of expression libraries support, these words are reminders of our profession’s most fundamental purpose and value. These words also imply that there is a loss of freedom when access to information is curtailed.

Already there is a growing amount of licensed music, issued solely as digital downloads, that is unavailable in libraries, and it’s just a matter of time before a large number of books and videos will likewise be available only through licensed channels. If it is unacceptable for libraries to conform to the limitations imposed by licensed services and materials, as I contend it is, then what should be done? Farkas is, of course, correct that any breach of license could put a library and its greater community in jeopardy, and I certainly do not advocate individual libraries engaging in such risky practices. Unfortunately, it is that worry—the fear of being sued—that keeps us from pushing the envelope and developing real solutions.

But if libraries continue only to work within the narrower and narrower range of what licenses allow, we may just be abiding ourselves into obsolescence, while also submitting to the diminution of the very freedoms that are in our care.

D. J. HOEK is head of the Music Library at Northwestern University in Evanston, Illinois.

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