Pssst ... Want to Counter Commercially Drafted Proposed Legislation? A thought about advocating for fair use legislation under state contract law

When I first heard about the American Legislative Exchange Council's extensive collection of in-house drafted "model" bills, I thought, hum ... perhaps consumers advocating for fair use in commercial electronic information resources might want to give this non-profit a call. Then I read Brendan Greeley and Alison Fitzgerald's description of some of ALEC's "success stories" in their recent extensive Businssweek article:

The American Legislative Exchange Council, a nonprofit based in Washington, brings together state legislators, companies, and advocacy groups to shape “model legislation.” The legislators then take these models back to their own states. About 1,000 times a year, according to ALEC, a state legislator introduces a bill from its library of more than 800 models. About 200 times a year, one of them becomes law. The council, in essence, makes national policy, state by state.

ALEC’s online library contains model bills that tighten voter identification requirements, making it harder for students, the elderly, and the poor to vote. Such bills have shown up in 34 states. According to NPR, the Arizona bill that permits police to detain suspected illegal immigrants started as ALEC model legislation. Similar bills have passed in Alabama, Georgia, Indiana, and Utah, and have been introduced in 17 other states. Legislators in Oregon, Washington, Montana, New Hampshire, and New Mexico have sponsored bills with identical ALEC language requiring states to withdraw from regional agreements on CO2 emissions. Sound a national trend among state legislators, and often you will find at the bottom of your plumb line a bill that looks like something that has passed through the American Legislative Exchange Council.

Yikes. Just how naive can I be!

A bit more:

Paul Weyrich started the council in 1973 with a group of Republican state legislators. Weyrich also founded the Heritage Foundation and coined the phrase “moral majority.” More than 2,000 state lawmakers belong to ALEC; each pays $50 in yearly dues. A look at former members now on the national stage suggests the organization is a farm team for Republicans with ambition. There are 92 ALEC alumni serving in the U.S. House, 87 of them Republicans. In the Senate, eight Republicans and one Democrat are ALEC alumni, according to information found on ALEC’s website in April that has since been removed. According to the Center for Media and Democracy, a Madison (Wis.) research group, four sitting governors were members, including John Kasich of Ohio and Scott Walker of Wisconsin.

Ron Scheberle, the council’s executive director, is not a legislator. He spent 30 years as a lobbyist for Verizon (VZ) and GTE. He declined a request for an interview. ALEC is open and helpful about some parts of its work and quiet and evasive about others. It tends to withhold information that might shed light on its corporate members, the ones that pay almost 99 percent of the council’s $7 million budget.

If you haven't already read Brendan Greeley and Alison Fitzgerald's Pssst ... Wanna Buy a Law? When a company needs a state bill passed, the American Legislative Exchange Council can get it done, consider doing so. For much more detailed information about this so-called "nonpartisan" group, see The Center for Media and Democracy's ALEC Exposed.

Advocating for consumers and users of commercial E-Content by fair use legislative proposals. It sounds to me like the first place the publishing industry will turn to protect their e-content licenses from fair use legislation would be ALEC! Do note Greeley and Fitzgerald article recounts a story in public interest fashion about how an ALEC-acquired draft legislation in one state was followed up with corporate and industry group lobbying efforts and campaign donations. How would consumer advocates counter the bill-drafting, public policy shifting might of ALEC?

Well, it might be time to start taking a very serious look at David Robert Hansen's draft Educational Fair Use Preservation Act, provided in A State Law Approach to Preserving Fair Use in Academic Libraries [SSRN]. Quoting from Time for AALL to "Interfere" in Licensing: An Approach for Petitioning State Governments:

Hanson's hypothetical Educational Fair Use Preservation Act would render any licensing provision between rights holders and an IHE that modifies or eliminates fair use for users void. While it addresses the issue in the context of public academic libraries, Hansen observes:

Academic library users are not, however, the only group of users that are negatively impacted by licensing restrictions on rights like fair use. As the digital distribution of copyrighted works becomes more common, consumers are presented with the same problems as those in academia. Because contracts—creatures of state law—are what enable these problems, serious thought should be given by states courts and legislatures to modifying state contract law, either for individual classes of users (as this paper proposes), or for consumers in general.

I'm thinking "for consumers in general," someday. But for the moment, it is probably more realistic to tackle all public libraries, state-by-state-by-state by way of model legislation along the lines offered by Hanson who, by the way, is currently a Digital Library Fellow at Berkeley Law. The one corrective to corporate lobbying and campaign contributions could be costs state and local entites pay for commercial online vendor licensing. In this time when public libraries -- public IHEs, primary and secondary schools, general public libraries, and state and county agency and court law libraries -- are being "downsized" due to public funding cuts, this strategy might have some traction with state legislators. It would be pretty damn hard for state legislators to rationalize public library funding based on the "it's all electronic" argument when confronted with the costs and commercial business practices assocated with providing e-resources across the entire spectrum of public sector libraries plus the hue and cry from public library patrons who need those services. The moral and voter high ground can trump corporate lobbying efforts and their campaign contributions.

Library consumer advocacy groups like ALA and ACRL and now the AALL Consumer Advocacy Caucus with its sanctioned mandate to submit recommendations to AALL for government petitions, have the ways and means to move into the state legislative arena aggressively because under most, if not all, state records acts, public contracts can be obtained. Obviously, this could lead beyond fair use to the escalating costs of unfair and anti-competitive business practices in the public sector.

In Standing Together For Consumer Advocacy, Michael Ginsborg, chair of the AALL Caucus on Consumer Advocacy recently echoed an opinion shared by many:

Our Caucus belongs to every AALL member. We want to respond to your interests and concerns.  If you support our purpose, how do you think we should pursue it? If you do not support it, or feel ambivalent, what are your concerns? All of us share the same fundamental values as law librarians, even where some of us may disagree on their application to consumer advocacy. Our shared values allow us to explore not only our differences over consumer advocacy, but our overlooked opportunities for consensus.

Hopefully, address licensing issues in public sector contracting will not be an overlooked opportunity for acquiring a consensus. All it takes is one motivated group to get the ball rolling. Others, like ALA and ACRL, will jump on board and contribute to the project. [JH]