This NewsBreak was originally published in the September 2022 issue of Information Today with the title “Terms of (Dis)Use: Where Modern Libraries Fit in the Overabundant—Yet Limiting—Online Information World.”
Do you ever feel like your head is exploding? Not because of a migraine or because the construction crew outside is just too loud today, but because there is so much content out there in the world and you are only one person. How can you keep up?
For centuries, libraries and their workers have been expected to keep their fingers on the pulse of what’s hot in bookland. Now, that job has expanded enormously. Libraries are expected to not only have the newest releases in books, but also in TV shows, movies, and all of the emerging technologies of modern entertainment. Knowing what is popular is its own full-time job, let alone figuring out what people from all walks of life might like, whether we can even buy a physical copy, and how quickly we can get it into their hands before the next great thing comes out.
When you think about the big weekend movie you want to watch or see an ad for an upcoming show, chances are you’re going to have to open an app to access it. Streaming services dominate our lives like never before. Cord-cutting seminars on ditching cable and switching to lower-cost streaming options now seem quaint when subscribing to all of the popular streaming services is no longer a bargain.
Libraries are used to circulating media, such as DVDs, and are permitted to do so under the first sale doctrine, which lays the foundation for library services. However, this doctrine only applies to “that particular copy” of an item; in other words, libraries can lend a particular copy of a book or DVD because they purchased it and physically own it. The first sale doctrine does not apply without ownership first being established. Rentals, leases, loans, and, most importantly, licensing agreements, do not count as a sale. Therefore, libraries lending out a preloaded subscription streaming stick tramples on the copyright protections of the content creators and blatantly ignores the terms of service they agreed to by checking the box and clicking submit.
In researching this topic, I noticed a few consistent arguments for the practice of ignoring the agreed-upon terms of service. The most common arguments include that the services already know what libraries are doing and do not care, that services won’t sue them specifically, and that “if so many places are doing it, then I might as well too.” To that, I rebut, is something only wrong because you get caught? And to use the classic parental line, if everyone were jumping off a bridge, would you do it too? Everyone speeds while driving now and then; that doesn’t mean it isn’t a crime to do so, and if you speed by the right police officer, they will have every cause to penalize you. Caring about copyright and contracts—the terms of service you agree to when signing up for a service is indeed a contract—cannot only occur when it is convenient for the library or the librarian.
By ignoring the agreed-upon terms and providing access to these services in this manner, libraries are making it easier for streaming services to ignore patrons’ needs. Any library with an ebook collection already recognizes the content licensing model by paying more for those titles than they would for the physical copy. We accept that licensing in this way attempts to be fair to both users and creators. Since we accept this logic, we cannot then turn around and subvert a different vendor’s terms because it makes our jobs easier or because we do not believe its terms are ethical or equitable (I agree—they are not).
Advocating for change, such as through an institutional subscription model at a higher price point than a direct-to-consumer subscription, should be our avenue for increasing equity and accessibility. A more robust institutional subscription would also clear up any potential privacy pitfalls, such as library workers failing to clear the watch history and patrons being able to see what the previous person has viewed—a clear violation of patron privacy. Additionally, streaming services are cutting costs by not investing in DVD versions of their films and TV shows, barring access to anyone without an internet connection. If it is the public library’s mandate to provide access to information, advocating for equity in entertainment must be a part of that job as well.
Because libraries have demonstrated their ability to provide certain services, patrons now have a heightened expectation of their perpetual availability. Access to licensed content for free via the public library was already on the uptick before the pandemic and has exploded since its onset. Alongside increasing use, concerns about prices, fluctuating availability, metered access, and patrons’ format preferences remain points of contention. Since libraries had to quickly pivot to acquiring and subscribing to much more online content in spring 2020, patrons now expect that level of service from their public library, although none of the issues have been satisfactorily solved.
Did the pandemic force libraries to ring a bell that now cannot be unrung? Money from federal programs such as the American Rescue Plan Act and the Emergency Connectivity Fund is supposed to be supporting needs that resulted from remote learning, working from home, and subpar internet connectivity to the tune of $7.17 billion. Is this money really addressing these problems in concrete and sustainable ways? What about when the money runs out and libraries are stuck holding the bill for services they can no longer afford and that patrons have grown to expect? Hotspots do not become magically free because the grant period ended. Throwing money at problems doesn’t equate to fixing them, even if it helps decision makers sleep better at night.
Libraries and their workers are tasked with figuring out how to create opportunities for people to interact with information in the entertainment sphere with limited funds, space, and time. Some of the biggest shows on the planet are not available in physical form—looking at you, Squid Game, Bridgerton, and Stranger Things—and the last two Best Picture winners at the Oscars (Nomadland and CODA) are owned by streaming services, with only Nomadland (so far) getting a many-months-later DVD release. I’m sure countless library workers, myself included, have had to sadly tell a patron they cannot get them the title they want to see because it only exists in a cloud server and not on a disc.
For the titles that are released in a physical medium, there remains the perpetual library problem of which to skip and which to buy. When it comes out on DVD 3–5 months after its streaming debut, will patrons still want to see that popular movie or show, or will they have since stopped caring? Does the zeitgeist now move too quickly for libraries to catch up? With so much out there and internet time seeming to move faster than real time, libraries must individually reckon with the expectations and definitions of successful service.
PURPOSE OF THE MODERN LIBRARY
As we try, our heads spinning, to make sense of the ever-changing entertainment and information landscape and our place within it, we must also consider what our purpose is in the modern world. To maintain relevance, we should interrogate the role public libraries play in providing information access to our populaces today. There are many areas in which we have collectively soared—thinking on our feet to change our service models during times of strife, listening to our communities’ needs and responding accordingly, and collaborating with other public service organizations and sectors to provide new and exciting services, to name a few. All of those things should be celebrated, loudly and often.
But we also need to take a hard look at where we may be setting ourselves up for failure. As much as we want it to be, information is not free. And we are not providing it to people for free. All of our services cost money to make available, and we need to make that abundantly clear so that those services are not taken for granted.
Netflix is not going to create an institutional subscription service without being hammered by voices demanding the need for one. Apple is not going to invest hundreds of thousands of dollars into a DVD run of its movies and shows without people exposing how its business practices disadvantage entire segments of the population. State and federal budget makers are not going to increase library line items without library workers and passionate patrons reminding them over and over again of their importance to society.
“Netflix in Libraries and Hypocrisy” by Meredith Farkas
U.S. Department of Justice: 1854. Copyright Infringement—First Sale Doctrine
“How Streaming Platforms Reinforce Inequity in Public Access to Entertainment” by Jessica Hilburn
“Library Analytics: Shaping the Future—COVID-19 One Year Later: Trends in Library Book Acquisitions” by Jon T. Elwell and Ashley Fast
“State of America’s Libraries Special Report: Pandemic Year Two”
pink emphasis added by author
Amazon Prime Video
“[G]rants you a non-exclusive, non-transferable, non-sublicensable, limited license
… to access and view the Digital Content in accordance with the Usage Rules, for
personal, non-commercial, private use” (4h)
“You may not (i) transfer, copy or display the Digital Content … (ii) sell, rent, lease,
distribute, or broadcast any right to the Digital Content. …” (4k)
“You may use the Services and Content only for personal, noncommercial
purposes. …” (B)
“You agree that the Services, including but not limited to Content, graphics, user
interface, audio clips, video clips, editorial content, and the scripts and software used
to implement the Services, contain proprietary information and material that is owned
by Apple and/or its licensors, and is protected by applicable intellectual property
and other laws, including but not limited to copyright. You agree that you will not use
such proprietary information or materials in any way whatsoever except for use of the
Services for personal, noncommercial uses in compliance with this Agreement. No
portion of the Content or Services may be transferred or reproduced in any form or by
any means, except as expressly permitted by this Agreement. You agree not to modify,
rent, loan, sell, share, or distribute the Services or Content in any manner, and you
shall not exploit the Services in any manner not expressly authorized.” (L)
“[G]rants you a limited, personal use, non-transferable, non-assignable,
revocable, non-exclusive and non-sublicensable right to … [i]nstall and make noncommercial,
personal use of the Disney+ Service or ESPN+ Service” (3ai)
“You agree that as a condition of your license, you may not and agree not to … use
the Disney+ Service or ESPN+ Service for any commercial or business related use
or in any commercial establishment or area open to the public … or build a business
utilizing the Disney+ Content or ESPN+ Content or Disney+ Service or ESPN+ Service,
whether or not for profit. …” (3ciii)
“Authorized Users are limited to members of your immediate family or
“The copyright holders have licensed this Content for private use only. …” (4.1)
Prohibitions against unauthorized “distribution of a copyrighted program” and company
has right to gather data to ensure compliance (4.1)
Can terminate your account with or without cause, and user has agreed not to make
another account (3.6)
Grants “you a non-exclusive limited license to use the Services, including accessing
and viewing the Content on a streaming-only basis through the Video Player, for
personal, non-commercial purposes” (3.2)
“You may not build a business utilizing the Content, whether or not for profit.” (3.4a)
“[P]ersonal and non-commercial use only and may not be shared with individuals
beyond your household” (4.2)