Overview Books, LLC v. United States

72 Fed. Cl. 37, 34 Media L. Rep. (BNA) 2185, 2006 U.S. Claims LEXIS 207, 2006 WL 2052317
CourtUnited States Court of Federal Claims
DecidedJuly 24, 2006
DocketNo. 05-775C
StatusPublished
Cited by8 cases

This text of 72 Fed. Cl. 37 (Overview Books, LLC v. United States) is published on Counsel Stack Legal Research, covering United States Court of Federal Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Overview Books, LLC v. United States, 72 Fed. Cl. 37, 34 Media L. Rep. (BNA) 2185, 2006 U.S. Claims LEXIS 207, 2006 WL 2052317 (uscfc 2006).

Opinion

OPINION AND ORDER

LETTOW, Judge.

This case concerns the Library of Congress’ Cataloging in Publication (“CIP”) program. Through the CIP program, the Library prepares a bibliographic record for a book that has not yet been published; this bibliographic record is distributed to libraries, bibliographic services, and book vendors in advance of publication. The CIP program also assigns a Library of Congress Control Number (“LCCN”) to the book. For a publication to be included in the CIP program, a book and the book’s publisher must conform with certain criteria established by the Library. Books that do not meet these requirements may apply for an LCCN through an alternate program, the Preassigned Control Number (“PCN”) program, which does not distribute the book’s information to libraries and vendors as the CIP program does. One of the requirements for inclusion in the CIP program is that the publisher must have previously published books from at least three different authors. Another is that the author not pay for or subsidize publication of the book.

Plaintiff Lev Tsitrin, under the pseudonym Vel Nirtist, is the author of The Pitfall of Truth: Holy War, its Rationale and Folly (“Pitfall”), a book published by plaintiff Overview Books, LLC (“Overview Books”) in 2005. Overview Books was formed by Mr. Tsitrin; Pitfall was the first and has been the only book published by Overview Books. Plaintiffs aver that Overview Books applied to the Library of Congress for inclusion of Pitfall in the CIP program. They state that the Library excluded Pitfall from the CIP program because Overview Books had not previously published books from three different authors and the book was self-published. Plaintiffs allege that the Library’s “three author” and “self-published” restrictions deprive plaintiffs of an opportunity to compete with other publishers and to reap financial rewards from the publication of Pitfall because failure to participate in the CIP program denies plaintiffs ready access to markets for the book, such as libraries [39]*39and booksellers. As a result, plaintiffs contend that the Library has effectively taken plaintiffs’ property. Plaintiffs also contend that the “three author” criterion abridges their First Amendment right to freedom of speech.

Plaintiffs filed their complaint on July 22, 2005. Thereafter, the government filed a motion to dismiss, and plaintiffs filed a cross-motion for summary judgment. The motions have been fully briefed, and a hearing on the motions was held on June 30,2006. The case is now ready for disposition. For the reasons set out below, defendant’s motion to dismiss is granted, and plaintiffs’ motion for summary judgment is denied.

BACKGROUND1

A The CIP Program

The Library of Congress is an agency of the legislative branch of the United States government. See 2 U.S.C. §§ 131-185. The Library includes several internal components (or service units), including Library Services, of which the Cataloging in Publication Division is a part. See Library of Congress General Information, http://www.loc.gov/ about/generalinfo.html (last visited July 19, 2006); Library of Congress Organization Chart (Sept. 30, 2004), available at http:// www.loc.gov/about/LC — org—Sep04.pdf. The Cataloging in Publication Division administers the CIP Program. See Compl. ¶ 7. The CIP program began in 1971 as a special project, funded in part by grants from the Council on Library Resources Inc. and the National Endowment for the Humanities. Cataloging in Publication Celebrates 30th Anniversary, Library of Congress Information Bulletin (May 2001), http://www.loc.gov/ loe/lcib/0105/cip.html. Since its founding, the CIP program has evolved from creating 6,500 pre-publication cataloging records annually to creating more than 57,000 cataloging records annually. Id.

The purpose of the CIP program is to serve the nation’s libraries by cataloging books in advance of publication. Compl. ¶ 5; Plaintiffs’ Cross-Motion for Summary Judgment and Opposition to Defendant’s Motion to Dismiss (“Pis.’ Mot.”) Appendix (“Pis.’ App.”) tab D at 1 (Purpose of CIP). “Publishers participating in the CIP program submit electronically the full text of eligible publications to the Library.” Pis.’ App. tab D at 1. The Library creates a bibliographic record for each publication and transmits it to the publisher, which then prints the record on the verso of the title page. Id. The Library thereafter assigns an LCCN to be associated with the bibliographic record of each publication. Id. at 9 (CIP Frequently Asked Questions (“CIP FAQ”)).2 Through this process, “a bibliographic record is immediately available to each library that acquires a copy of the book, thereby saving libraries the time and expense of individually cataloging each book they acquire.” Id. at 1 (Purpose of CIP). The Library “distributes these records weekly in machine readable form to large libraries, bibliographic services, and book vendors around the world. Many of these organizations redistribute these records in products and services designed to alert the library community to forthcoming publications and to facilitate book ordering.” Id. There is no charge for participation in the CIP program. Id. at 7 (CIP FAQ).

Participation in the program is limited to publications “that are most likely to be widely acquired by the nation’s libraries.” Pis.’ App. tab D at 4 (Scope of the CIP Program). The Library lists certain types of publications as ineligible, including: “[bjooks published by firms that have published books by fewer than three different authors;” “[bjooks paid for or subsidized by individual authors;” “[bjooks that are already published;” and “[bjooks published on demand.” Id. The Library’s website explains that such constraints on the program are necessary because “[rjesources available to support the CIP pro[40]*40gram are limited.” Id. at 8 (CIP FAQ). The Library further explains that the policies that govern the CIP program, including decisions regarding those materials that are included or excluded, “are developed in consultation with the library community.” Id.

Publications that are not encompassed within the CIP program may be eligible for inclusion in an alternative program, the PCN program. Compl. ¶ 17; Pis.’ App. tab D at 8 (CIP FAQ). The CIP and PCN programs are mutually exclusive. Pis.’ App. tab D at 8-9. The PCN program does not automatically exclude books published by firms that have published books by fewer than three different authors, books paid for or subsidized by individual authors, and books published on demand. See Scope of the PCN Program, http://pcn.loc.gov/pcn005.html (last visited July 19, 2006). Publications submitted through the PCN program may be selected for creation of a bibliographic record and concomitant LCCN. PCN Frequently Asked Questions, http://pcn.loc.gov/pcnfaq. html (last visited July 19, 2006) (“PCN FAQ”). However, not all works submitted through the PCN program will be selected for creation of a bibliographic record. Each submitted book is reviewed by a Library selection officer. If a book is selected for retention in the Library’s collections, then a bibliographic record will be created and this record will appear in the Library’s online catalog; if the book is not selected for retention, the Library will not create a catalog record for the book. Id.

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Bluebook (online)
72 Fed. Cl. 37, 34 Media L. Rep. (BNA) 2185, 2006 U.S. Claims LEXIS 207, 2006 WL 2052317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/overview-books-llc-v-united-states-uscfc-2006.