David Kay thought he'd found the "vinyl solution"-- a way to safeguard The John Henry Faulk Central Library's record collection while it closed for renovations. He checked out 150 jazz, soul, pop, and classical records in the three days preceding its closing last summer. Now, the Austin Public Library and the City of Austin's Claims Division say Kay's got more than a vinyl solution -- he's got a legal problem.
Although Kay maintains he's still in possession of the records in question, and may be willing to return them, the city has brought a lawsuit against Kay for $2,282.66 -- a sum that, including a processing fee of $5 per record, the Austin Public Library says would be necessary to replace Kay's collection. Kay maintains that the library -- which re-opened April 29 -- has been embarking upon a secretive campaign to phase out their vinyl collection, and that they aren't interested in the physical return of the records themselves, but are simply looking for financial gain by collecting fees for records that they admit they have no plans to replace. In Kay's written reply to the city's Petition For Debt, he writes "They don't even want their records back! They just want the money. As the Defendant does not have the money in dollars or sense, I suggest the Plaintiff take back the records, but only if they establish a moral conscience so they do not secretively establish a policy to throw away our records behind closed doors."
Kay, who briefly worked as a clerk for the Public Library in 1994, says he'd received "inside information" from his former colleagues just before the closing of the main branch at Eighth and Guadalupe last July that the record collection would go uncirculated during the renovation, and worse, that the library could re-open without a vinyl collection. As such, Kay says he devised a plan wherein he and several friends would check out large portions of the collection and return them to other library branches -- thereby forcing circulation during the closure. When Kay's friends discovered their returns were actually being shipped back to the closed Central Library for re-shelving, Kay decided to hold on to his portion as the "vinyl solution."
Kay says his goal is to force discussion on the future of the vinyl collection -- nearly 10,000 pieces -- which Kay maintains is beginning to surface at alarming rates at the Friends of the Library books sales, City-Wide Garage Sales, thrift stores, and used record retailers. "I'm fighting a battle for the preservation of history," Kay says. "It's about who has the control to arbitrarily throw away pieces of our aural history."
Despite the overdue notices and the resulting lawsuit, which city legal says is customary regardless of the defendant's preservationist motives, Kay's protest doesn't appear to have registered much discussion or policy action within the library. Kay's case and his campaign for the vinyl, say library officials and their lawyers, just isn't much of an issue. "The vinyl collection still circulates a good deal, so despite the precedent of libraries in Dallas and San Antonio phasing their vinyl out, we'd hate to take the stuff off the shelves," says Virginia Kniesner, the Central Library's Audio/Visual Librarian.
Kniesner admits that the library has withdrawn nearly 1,000 records from circulation over the last year, but says that only titles that were severely damaged or had not been checked out in over a year were deleted. And although the library discontinued funding for new vinyl purchases four years ago, Kniesner says the library routinely replaces damaged LPs with new CDs when the titles are available.
When Kay took out his records, he says, he believed space considerations in the newly renovated building were bound to lead to the total discontinuation of the vinyl program -- a theory Kniesner denies. "In fact," she says, "they're now even more prominently displayed, on the first floor and under the grand stairs. They do take up a lot of space, with higher shelving than books need, are easy to damage, and represent a heavy time and physical burden for staff to reshelve correctly. But if we've learned anything during the closing about the vinyl collection, it comes from the number of records we've reshelved because they were taken out before the closing. Surprisingly enough, this is still a very popular collection."
The condition of the records themselves, Kneisner says, not the library's closed-door policies, could actually end the vinyl program before patron interest wanes. She also says that a smaller number of titles are removed from the collection periodically because of low patron interest -- indicated by the last time the item was checked out. And although the withdrawal policy is the same for other non-vinyl library holdings, Kay says he envisioned the library taking advantage of the renovation closure to conclude that the records hadn't been checked out for six months. That would be an "easy excuse" for them to discontinue the collection as a whole, he claims.
Even with a 1,000-a-year depletion rate, Kniesner estimates, the collection should be safe for at least another five or six years, although the short-term threat may actually be in depleting the collection to a point that it's out of balance -- poorly reflecting musical diversity. "If it were to fall to badly out of balance," she says, "then we'd have to consider taking it all out." Ironically, David Kay's "vinyl solution" -- which removed a variety of albums from Miles Davis to Ray Charles, and Dizzy Gillespie to Jackie Wilson -- has left the collection with some of its largest gaps.
Kay's solutions to his legal problems appear equally problematic. Although he says he's used selections of the collection on his KOOP radio show, he maintains he doesn't have the finances to pay either the fines or replacement fees. And although Kay's petition says he believes the library isn't interested in having the records themselves returned, Assistant City Attorney Yvonne M. Miles says, "it is always, regardless of the state of litigation, the patron's right and option to return the material and pay the late fines." The library has a posted fine of 20 cents a day per item, but the maximum charge with the return of an item is $15 per item for recordings -- which would put Kay's debt at around $2,250, instead of the $2,282 he's being billed now. Kay says he hasn't decided how to proceed, but argues that, "even if I refused to return the collection there'd be nothing to process, because they're not purchasing new records, and therefore can offer no reasonable explanation of the processing fees. Because in effect, and perhaps unbeknownst to me, they've sold the collection to me."
Even if Kay's theory were true -- that the library has been dumping pieces of its collection for second-hand sales, to "profit off history" (the library denies they've sold the damaged or unpopular collection withdrawals to anybody other than the customary Friends of the Library outlet), it turns out that retail vinyl collectors wouldn't even be interested in them. In fact, says Kevin Carney, Half-Price Books' vinyl buyer, not only hasn't he been offered any bulk sales, but he wouldn't buy them anyway. "They come in one or two at a time occasionally," he says, "presumably from people who buy them cheap at the Friends Sale and want to get rid of them. But I'd be seriously uninterested in anything more, especially a bulk collection. For those that still collect vinyl, condition is paramount, and people don't take care of things they don't own. As such, library records are generally of compromised condition."
Despite Kay's inability to pay, Miles says that, like any other case involving library fines, Kay's case will be pursued vigorously, and that Kay's "vinyl solution" defense is best left for a judge or jury to comment on and determine as a question of fact. And although both parties say they're not confident it's a possibility, Kay also has his best-case scenerio carefully planned. Could a vinyl and legal solution be too good to be true? "In the best case," Kay says, "they'll decide not to throw away their records, take back my records, open their doors to public policy, and maintain a collection that's a historical testament of culture."
Or they might just put him in jail. n