Libraries vs. Big Streaming - an unfinished tale of copyright and disruption

A desperate call appeared on the VideoLib listerv.   "13th," a much-lauded social-issue documentary, nominated for an Oscar, could not be shown in class, to groups, or placed in an archive of important 2016 films.  It was showing only on Netflix, where no such rights are usually available. How, the post asked, can it be obtained?

In this case, a reprieve came when Ava DuVernay, the filmmaker, intervened with Netflix and tweeted it out. Public showings would be allowed (although so far, the archiving problem remains).  Such is the Age of Streaming, where most born-digital programming on Netflix, Amazon Prime and other direct-to-consumer platforms comes only via stream, encumbered by highly restricted terms of use.

John Vallier, University of Washington

John Vallier, University of Washington

It was fitting that the librarian who first sounded the alarm about "13th" should be John Vallier, Head of Distributed Media at the University of Washington.   Vallier comes from an ethnomusicology background -- he also plays drums -- and finding, preserving and distributing music is one of his life's missions.   With music having been the first-wave of media disruption, Vallier has been in the thick of the issue for a bit longer than video-only counterparts.

It started for Vallier back in 2009.  "Two things prompted my involvement," Vallier reflects in a recent email interview with Media This Month.  "D.J. Hoek's 2009 article on the topic in American Libraries, "The Download Dilemma: The demise of the compact disc signals an uncertain future for library sound recording collection," and my own realization that more and more of our audio and video content was only being accessible via portals cloaked in library-hostile terms of use (I'm thinking here of iTunes and Amazon, for example)."

Vallier went beyond the worried and concerned stage and took concrete steps.  In 2010, he and colleagues from UW -- backed by an NEH Digital Humanities Start-Up grant -- tried to negotiate library-friendly end user license agreements (EULA) with Amazon and Apple.   They were rebuffed (the single exception Vallier and his team were able to negotiate: a deal with Universal Music Group for 25 percent of a single recording of a Berlioz symphony, and the account is suggested reading [http://blogs.library.duke.edu/scholcomm/2014/07/28/planning-for-musical-obsolescence/]).

But rather than deliver a EULA-ogy for library music collections, Vallier pressed on, securing a grant from the Institute of Museum and Library Services (IMLS).   Vallier joined in with the UW Libraries and the Music Library Association (MLA) in this venture -- a two-year project that involved one round of community input at the MLA annual meeting in 2014, a meeting with consultants at the ALA meeting the same year, and a concluding summit in late 2014.   The summit was held at the Library of Congress, and took the form of a discussion with the board of the National Recording Preservation Board (NRPB), which includes representatives from scholarly associations, libraries and the music industry.

A raft of recommendations emerged from the summit:

  • Legislative reform, focusing on revision of copyright law.
  • Pursuing a test case via fair use doctrine and best practices.
  • Developing new EULA's with willing partners.
  • Developing new methods for long-term preservation of digitally licensed music.
  • Initiating a campaign of public relations and publish pressure.

Looking back two years later, Vallier professes to still have some hope.  "While the overall topic can seem daunting, irreversible, dire, I have been inspired by working with so many esteemed colleagues on [this] topic," Vallier writes.  "While we didn't 'solve' the issue, I think we are better poised for confronting this issue because of such collaborative work."

Yet as disruption proliferates, the challenge has also grown.  "It's getting worse and spreading rapidly to video, as many have predicted," Vallier notes.  "Just today I had to let some faculty know that we wouldn't be able to purchase the HBO streaming title they wanted because it was only available online from HBO. And yesterday I had to cancel a long list of purchases I wanted to make on Bandcamp as it looks like their terms of use have become more draconian in recent years and in-line with the Apples, Amazons, and Netflixs out there."

"The user-base for library music collections is fairly small when compared to those who check out and use library video collections," he continues. "Because of this, the impact is more noticeable with video. A library not being able to provide access to the latest Netflix-only documentary has a far more disruptive impact than a library not being able to provide access to the latest Deutsche Grammophon release on iTunes. Now when this issue will really become disruptive to librarians, and actually garner more recognition, is when more and more e-book content only becomes available via Amazons, etc."

Reflecting on the recommendations developed at the 2014 summit and refined afterwards, Vallier sees progress on some fronts.   He sees a "glimmer of hope" in the appointment of Carla Hayden as Librarian of Congress, but other staffing questions at the Library, and the partisan climate in Congress, make copyright law reform uncertain. As to fair use, Vallier writes: "It’s really going to take an institution brave enough to volunteer for a lawsuit in order to get clarity on the role of fair use with this issue. Any takers out there?"

In his UW day job, Vallier has become less involved in overall media collection development.  He now spends his time supporting a media maker space ("Media Arcade"), and also attends "to the stewardship and digitization of various audio/video/film archives."

"Being involved with the online-only issue on the one hand, and analog archives on the other, has given me a greater appreciation for the latter," Vallier concludes.  "While it may be dusty and deteriorating, there’s something implicitly reassuring about working with a tangible object, such as reel-to-reel tape."

Further reading:

Hoek, D.J.  "The Download Dilemma: The demise of the compact disc signals an uncertain future for library sound recording collection."  American Libraries.  July 2009. https://americanlibrariesmagazine.org/2009/07/27/the-download-dilemma/

Sound Recording in Crisis (University of  Washington portal)

http://guides.lib.uw.edu/friendly.php?s=research/imls2014

Tsou, Judy, and John Vallier.  "Ether Today, Gone Tomorrow: 21st Century Sound Recording in Crisis."  Notes, Music Library Assoc. Journal.  March, 2016.