January 22, 2024

Library Futures Files Amici in Two Key Cases

Before the end of 2023, Library Futures filed amici (friend of the court documents) in two cases: Netchoice and CCIA v Paxton/Moody (which will be heard by the Supreme Court) and Hachette v Internet Archive (currently in the Second Circuit Court of Appeals).

jennie rose halperin in a green dress with curly hair poses with paper copy of brief
Jennie posing with a paper copy of the Supreme Court Brief

In Netchoice, we joined with PEN America to argue that laws in Texas and Florida that force social media companies to host certain viewpoints are a violation of the First Amendment. This case concerns laws passed in 2021 that regulate content posted on big social media sites like Twitter (X) and Facebook. In this case, “regulation” is a false flag, as the laws actually intend to correct a perceived “bias” on social media sites by overriding their editorial and content moderation policies. If these laws are passed, states could force private companies to carry hate speech or other kinds of speech that violates common sense moderation policies – to use an analogy, it could be like a state forcing a privately owned bookstore to carry state-approved books. In the current political climate, where speech-restricting laws are being passed at an alarming rate, the Texas and Florida laws have the potential to deeply impact libraries. While it may seem unorthodox for a library digital rights organization to weigh in on this case, we are concerned about restrictions on speech not only for online platforms but also for libraries, booksellers, and bookstores in our communities. Statutes that would restrict libraries from removing or restricting materials consistent with their collection policies – whether electronic or print  – could result in collections that are filled with misinformation and hate speech. The case will be argued in front of the Supreme Court in February. Thank you to Ballard Spahr LLP for their support in writing this brief.

And in case you forgot (😳) Hachette v Internet Archive is entering appeal in 2024, and we joined with nine other library organizations and 218 individual librarians to file an amicus brief for the second time in this case. Once again, we reviewed the history of CDL, argued that Controlled Digital Lending is an established and common practice in the library community, that the licensed ebook market is not a replacement for Controlled Digital Lending, and that CDL is based in established copyright law. In addition, we took issue with the court’s earlier decision that a “donate” button on a nonprofit website is equivalent to a commercial use  While some of these arguments may look familiar from our last filing, the issues at stake are now quite different due to the lower court’s four factor fair use ruling in favor of the publishers, which we believe is incorrect from both a legal and social point of view. There is an excellent overview of the amici filed in this case over at the Internet Archive blog. Thank you to the eBook Study Group for leading this brief and to the eight other library organizations and 218 librarians who signed on.

We’re looking forward to the outcomes of these cases in the coming months. For more updates on Library Futures and Engelberg legal projects, please sign up to our newsletter!

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