A new home for copyright?

The idea that the Copyright Office should move out of the Library of Congress was first raised some years ago by Bruce Lehman, who was, at the time, the Director of the Patent and Trademark Office.  The idea seemed to be that the Copyright Office should join the PTO as an agency within the Commerce Department.  That idea did not seem to be very well-received by many, and I had not heard of the discussion for a while.  But apparently the possibility of moving the CO is still kicking around, and last month current Registrar of Copyright Marie Pallante sent a letter about the topic to Rep. John Conyers, the Ranking Member of the House Committee on the Judiciary.  Her letter was requested after a hearing about the functions and resources of the CO held back in February.

Pallante’s letter makes interesting reading, especially if one is interested in the inside politics of Executive Branch appointments, separation of powers, and the like.  The bottom line, however, is that Registrar Pallante thinks that the Copyright Office should be separated from the Library of Congress, should not move into the Commerce Department, and should instead become an independent agency with its leader directly appointed by the President and confirmed by the Senate.  There has been some discussion about this letter and the ramifications of the debate among my colleagues, and I want to consider two issues that I think are of interest to a wider audience, while admitting that I am shamefully cribbing ideas from those colleagues.

The first issue is why the Copyright Office should leave the Library of Congress in the first place.  Registrar Pallante offers several reasons in her letter.  One is the claim that the Library of Congress is in a Constitutionally awkward position, since it is apparently an Executive branch agency (the Librarian is appointed by the President), but its functions, including advising Congress about copyright law, are at least partially legislative.  While I see the issue, it is not clear to me why it is more pressing for the CO than it is for other offices within the Library, including, for example, the Congressional Research Service.  Nor do I fully understand why making the CO an independent agency, with its head still appointed by the President, would solve this dilemma.  There is certainly an issue of prestige here, but I am not convinced that it is enough to justify a new Federal agency.

The other reason Pallante offers for moving out of the Library of Congress are the “operational challenges,” including staffing and pay.  All bureaucracies are difficult, of course, and rumor has it the LoC is more difficult than most these days.  But, again, it is not obvious that a new agency would necessarily be better.  Everything would depend on the personnel and the budget.  More troubling, however, are the footnotes in Pallante’s letter that refer to the “conflict of interest” between the CO and the Library, which apparently was mentioned by some witnesses during those February hearings.

Is there a conflict of interest between a library and the office that administers our national copyright policy?  If there is, what does that tell us?  To my mind, it suggests that our copyright policy has gotten out-of-line.  We may be developing an approach that sees copyright as a trade regulation that protects specific industries, not as a policy decision about how best to ensure the continuous creation of new works of knowledge and culture.

This concern was clearly raised during the hearings, where Rep. Zoe Lofgren challenged the assumption that the Copyright Office was no longer a good fit with the Library of Congress by suggesting that over the years, the librarians have been better at understanding copyright than some staff at the CO.  To her credit, in her letter Pallante does not endorse the idea of moving the CO to Commerce, where the symbolism of copyright as a sort of trade regulation would be even stronger.  But I would argue that our predecessors knew what they were doing when they centralized copyright services inside the Library of Congress.  Libraries epitomize the social benefits that copyright is supposed to support, and the “optics” of moving the Office, at least, would inevitably undermine that long-standing commitment to the public good.

In fact, if the CO was located in the Commerce Department, as my colleague Brandon Butler points out, it would have to consider all aspects of commerce related to copyright, including those industries that depend on fair use and other copyright exceptions.  The wrong-headed narrative about the competition between the content industry and the technology sector, with the former held up as copyright dependents and the latter as modern-day pirates, would be harder to sustain.  The unfortunate possibility exists that the CO’s desire for independence represents a desire to become even less balanced in its approach than it has been in the past, focusing entirely on its perceived role as enforcer of rules that protect Hollywood from the threatening innovations of Silicon Valley.  An office in the Commerce Department would be less able to take sides.

In terms of rationale and purpose, the Library of Congress is a good fit for the Copyright Office, even if the CO does not, under its current leadership, recognize this.  If a new home is really necessary, Butler makes the wonderful suggestion that the Department of Education should be considered.  The DoE, more than Commerce and maybe even more than the Library of Congress, could refocus copyright policy on the reason we have these laws in the first place — to promote the progress of knowledge and science.  If we lose track of that purpose, it becomes an open question whether we need the law or the CO at all.

Listening to Lessig

Like many other attendees, I was pleased when I saw that the closing keynote address for this year’s Association of College and Research Libraries Conference was to be given by Professor Larry Lessig of Harvard.  But, to be honest, my excitement was mingled with a certain cynicism.  I have heard Lessig speak before, and I am afraid I worried that I would be listening to essentially the same lecture again.

My suspicion was not wholly unwarranted.  In part I think it is the fault of Lessig’s instantly recognizable lecture style.  It is energetic and entertaining, but because its rhythms and conventions are so idiosyncratic, I think it may flatten the message a little bit.

In any case, I sat down in the ballroom of the Oregon Convention Center on Saturday with somewhat mixed expectations.  But what I did not expect was for Lessig to begin his talk by acknowledging that all his public lectures were really the same.  Had he read my mind?  No, his point was a little different.  Over the years, he told us, he has had three major themes – political corruption, net neutrality, and copyright/open access.  But, he told his audience of attentive librarians, those three themes are fundamentally just one theme.  Each is about equality.  Not three themes, but only one — equality.  Equality of access to the political process is the heart of his current campaign against the corruption of our political system by the endless pursuit of money.  Equality of access to the means of communication and culture is key to the fight for net neutrality.  And equality of access to knowledge is what animates the open access movement.

So it turns out that my worry, prior to the talk, was both unfair and, in a sense, correct.  All Lessig’s lectures are very much the same, because the underlying value he is asking us to focus on is the same.

Thinking about this unity-behind-diversity in the messages about political corruption, net neutrality and open access set me thinking about the way my colleagues and I frame our advocacy for the last of those items, open access to scholarship.  Our messages, I think, tend to focus on incremental change, on the benefits to individual scholars, and on not rocking the academic boat too much.  Lessig reminded me that there are good reasons to rock a little bit harder.  Publishing in toll access journals and neglecting open access options or additional means of dissemination is not just short-sighted.  It is dumb, and it is harmful.  We need to say that occasionally.

Publishing exclusively through closed access channels is dumb because it ignores huge opportunities available that can, quite simply, make the world a better place.  And such publishing fails to take full advantage of the greatest communications revolution since the printing press.  Indeed, online toll-access deliberately breaks network technology in order to protect its outmoded and exclusionary business model.  Doing this is simply propping up the buggy whip manufactures because we are afraid of how fast the automobile might travel.  The academy is not usually this dumb, but in this case we are wasting vast amounts of money to support an obsolete technology.  I know that the promotion and tenure process is often cited as the reason for clinging to the old model, but this is simply using one outdated and inefficient system as an excuse for adhering to another such system.  Traditional modes of evaluation are breaking down as fast as traditional publishing and for the same reasons.  Hiding our heads in the sand is no solution.

More to the point, however – more to Lessig’s point – is the fact that this traditional system we are so reluctant to wean ourselves from actually hurts people.  It fosters ignorance and inequality.  It makes education more difficult for many, retards economic progress, and slows development worldwide.  As academics and librarians who by inclination and by professional responsibility should be committed to the most universal education possible, it is shameful that we cling to a system where only the rich can read our scholarship, only the privileged gain access to the raw materials of self-enlightenment.  How can a researcher studying the causes and treatments of malaria, for example, be satisfied to publish in a way that ensures that many who treat that disease around the globe will never be able to see her research?  How can an anthropologist accept a mode of publishing that limits access for the very populations he studies, so they will never be able to know about or benefit from his observations?  Why would a literary scholar writing about post-colonialist literature publish in a way that fosters the same inequalities as earlier forms of colonialism did?

In this wonderful column from Insider Higher Ed., the ever-insightful Barbara Fister writes about what we really mean when we talk about serving a community, and what we might mean by it.  She comments on the “members-only” approach to knowledge sharing that has become an accepted practice, and challenges us to rethink it.  Like Lessig, Fister is calling us to consider our core values of equality and the democratization of knowledge.  She also reminds us of how dumb – her word is wasteful – the current system is.

Perhaps the most vivid example of how subscription-based publishing fosters, and even demands, inequality is found in the ongoing lawsuit brought against a course pack publisher in India by three academic publishers.  Two of the “usual suspects” are here – Oxford University Press and Cambridge University Press (joined, in the Delhi University suit, by Taylor and Francis) – and this lawsuit is even more shameful than the one brought against Georgia State.  The problem, of course, is that the books published by these modern-day colonialists are too expensive for use in India.  I once was told by a professor of IP law in India that a single textbook on trademark law cost over a month’s salary for his students.  Photocopying, whether it is authorized by Indian law or not (and that is the point at issue) is a matter of educational survival, but these publishers want to stop it.  Their rule – no one should ever learn anything without paying us – is a recipe for continued ignorance and inequality.  It is disgraceful.

I use the word colonialists in the paragraph above quite deliberately.  What we are seeing here is the exploitation of a monopoly that is imposed on a culture with the demand that people pay the developed world monopoly holders in order to make progress as a society.  We have seen this too many times before.

The thing I like best in the article linked above – the whole thing is well worth a careful read — is the brief story of how a student group in India began handing out leaflets about the lawsuit at a book fair where CUP representatives were hawking their wares.  They wanted to let people know that buying books from Oxford and Cambridge is supporting a worldwide campaign of intimidation that is aimed at reducing access to knowledge and culture.  Publishing with these presses is a form of colonial occupation that extorts from whole populations a high price to obtain the means of cultural and intellectual growth.  The reaction, of course, was predictable; the publisher summoned the police to protect themselves and others from these unpleasant truths.  But the technique has merit; perhaps we can also find ways to shame these publishers when they attend our academic or professional conference, when they send salespeople to our campuses, and when they recruit our colleagues to write and review for them.  A commitment to equality demands no less.

Copyright, Open Access, and Human Rights

The United Nations Human Rights Council is holding its 28th session this month, and one item on the agenda is discussion about a report from Farida Shaheed, who is a “Special Rapporteur” in the area of “cultural rights.”  Ms. Shaheed is a well-known Pakistani sociologist and human rights activist.  Her report is a remarkable document in many ways, with a lot of things to like for those who are concerned about the overreach of copyright laws.  There are also some points that are troubling, although, on balance, I would love to see this report get attention and action from the U.N.

In some sense, the most remarkable thing about this report is its frank recognition that intellectual property laws are in tension with the fundamental human right of access to science and culture. In only its third paragraph, the report reminds us that since at least 2005, the World Intellectual Property Organization, a U.N. agency, has been mandated (whether effectively or not) to give “renewed attention to alternative policy approaches to promote innovation and creativity without the social costs of privatization.”  In short, the WIPO is charged, whether effectively or not, to find ways to facilitate open access to science and culture.  This charge is made explicit in the recommendations, where the Special Rapporteur directly suggests that “[p]ublic and private universities and public research agencies should adopt policies to promote open access to published research, materials, and data on an open and equitable basis, especially through the adoption of Creative Commons licenses” (para. 113).

When librarians and other open access advocates discuss OA policies with their faculties, perhaps we should recognize that there is a compelling argument to be made that this is not just a “what’s best for academia and for my interests” issue, but a true human rights issue.  Ms. Shaheed’s report makes this case in a concise and compelling way.  And this point also reminds us of why open access that is achieved simply by paying the commercial publishers to release articles is not a solution, because it does not really promote equitable access.  The fees charged are too high for many authors, they are not administered in a transparent way, and, frankly, some of the publishers cannot be trusted to fulfill their end of the bargain.  Barbara Fister discussed some of these problems in more detail in her recent Inside Higher Ed blog post, called “New Predatory Publishing in Old Bottles.”  If we take open access seriously as a step toward a more democratic and equitable culture, we must embrace a wider variety of “flavors” of OA, and not assume that the “usual suspects” can do it for us.

To return to a reading of the Human Rights Council report, there are strong endorsements of the idea that cultural and scientific development depends on restraining the reach of IP protections.  The section on “Copyright policy and cultural participation” is structured around three themes that all begin with “promoting cultural participation through…” and then go on to discuss copyright limitations and exceptions, international cooperation, and open licensing.  Here are some specific recommendations that I found very encouraging:

  • In regard to negotiations that are already underway, the report endorses ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Disabled, or Otherwise Print Disabled.  On the other hand, Ms. Shaheed expresses concern (para 19) about the Trans-Pacific Partnership Agreement that is currently being negotiated in secret, which is the problem that the report focuses on, calling for all such multinational agreements to be discussed in a transparent way (para 92).  Since the TPP is often defended with the claim that it will benefit developing countries, it is fascinating to see it cited as an example of a “democratic deficit in international policy making.”  From a different article, this editorial about the TPP by a U.S. Senator raises the same type of concern, and together they make a strong case against the agreement.
  • In paragraph 22 the report discusses the potential that a pervasive licensing environment can inhibit artistic self-expression and slow cultural development.
  • The report calls for the adoption of international treaties on copyright limitations and exceptions for libraries and education.  Given the current climate in the WIPO, this seems like a long shot, but is valuable in part because it calls attention to that climate, which is dominated by representatives of commercial interests (including, unfortunately, the U.S. Trade Representative).
  • On the issue of copyright limitations and exceptions, the report specifically points to fair use as a tool for allowing a more “comprehensive and adaptable” approach to unlicensed uses (para 73).  The report notes that most countries take the route of adopting exceptions for specific types of use, which provides more certainty, but adds that that approach may be inadequate in the current environment.  In general the report calls for a flexible approach to “uncompensated use of copyrighted works , in particular in contexts of income disparity, non-profit efforts, or under-capitalized artists” (para 106).  It specifically asserts, in this regard, that member states should not take a rigid approach to the so-called “three-step test” for copyright exceptions that is found in the Berne Convention (para 104), which is often used as a weapon by commercial interests against broadly applicable exceptions.
  • One of the recommendations I like best in this report, found in paragraph 107, is that states should enact laws that would prevent copyright limitations and exceptions from being overruled by contractual provisions, and protect such exceptions from excessive technological interference as well.  The UK has recently adopted the contractual part of this idea, stating that certain uses that are allowed by the law cannot be prohibited by contracts.  As I have said before, this is an idea we need to incorporate into U.S. copyright law, and it is good to see the U.N. special rapporteur endorse it so firmly.

There is an overall emphasis in the report that focuses on copyright as an authors’ right, and it is this focus that gives me some ambiguous feelings about the document.  On the one hand, I agree that a focus on authors and supporting authorship will help re-balance our approach to copyright.  Where we have most often gone wrong in this area is when we have allowed copyright discussions to focus on supporting the business models of intermediary organizations, regardless of whether or not those models really helped incentivize authors and creators.  Throughout its history, copyright has been called an authors’ right and treated like a publishers’ privilege.  Re-focusing on authors is part of restoring copyright to its proper function, and makes sense in a document about human rights.  And yet, it is also true that too much stress on author rights can also become unbalanced.  Copyright cannot benefit society unless it weighs the rights of both users and creators, especially since the former often aspire to become the latter.  Authorial control is an important part of the creative incentive, but it can easily go too far.

One troublesome area where this is a real danger is protection for “traditional knowledge and traditional cultural expressions” — the cultural creations of indigenous peoples.  This is an area where there have certainly been abuses, and it is not surprising to find a concern over TK and TCE, as the international community abbreviates them, in a report about IP and human rights.  Unfortunately, protection for these cultural products raises as many problems as it does solutions.  Should there be a public domain for TCEs?  If not, why not?  And who is the legitimate rights holder in traditional knowledge?  The national government?  In an article back in 2011, David Hansen explored some of these issues and found real incompatibility between traditional knowledge protections and the values that animate IP law.

So my final attitude toward this report is mixed, but still strongly positive.  I think it recommends many of the right steps toward restoring copyright and other IP rights to their proper scope and function.  It rightly places the focus on authors and on economic and cultural development.  It reminds us that all high-level copyright conversations should have a human rights perspective.  Where I have concerns, I see a chance for continued conversation.  But at least those conversations would take place with the proper grounding, if the report is taken as seriously as it deserves.

In the GSU case, the wheels keep turning

NB — An embarrassing correction — the motion discussed below was actually filed by the plaintiffs, the publishers, not by GSU.  So this does look very much like the publisher intent is to go forward with new proceedings in the District Court.  And speculation below about what GSU intends is misplaced.  Sorry, folks.

Spurred by this error, I have uploaded the motion, so interested readers can see it here

Before I get way down in the weeds to describe a new development in the GSU case, I want to tell readers about a wonderful new article about the case, still in draft form here on SSRN, by Brandon Butler, lately of the ARL and now at the George Washington College of Law at American University.  This is a clear and concise summary of where we are regarding educational fair use after the Court of Appeals ruling that reversed and remanded the GSU case.  It also is as good a set of “instructions” as I have seen for how we can move forward with fair use in the academy; I hope many of you will read it.

And, now, for those who enjoy the more arcane aspects of our law, the latest on that very case.

When last we heard from the Georgia State University copyright infringement lawsuit, the publishers were facing a decision — should they appeal to the Supreme Court, try to settle the case, or let the case go back to the trial court for further proceeding in light of the Court of Appeals ruling?

I have no insight into what is going on in the minds of the plaintiff publishers, or those who are instructing them; all I can say is that I don’t think they have yet filed with the Supreme Court for a Writ of Certiorari.  But because of a filing made in the District Court last week, we do now know something about what GSU is thinking, and it seems they are preparing for reconsideration of the case by Judge Orinda Evans.

On February 24, right in the middle of Fair Use Week, GSU filed a motion in Judge Evans’ court to “reopen the record on remand.”  When a case is appealed, the trial court “certifies” the record and sends it up to the court that will hear the appeal; that is, the lower court attests that the materials sent to the Appellate level are complete and accurate.  Now the case has been sent back to that trial court, and GSU wants to reopen the record — the documentary evidence in the case — so that Judge Evans would base any new opinion on the most up-to-date evidence.

At the root of this request is the fundamental fact in this case that Georgia State, as a state university, cannot be sued for money damages because of sovereign immunity.  In other words, they cannot be assessed a fine by the Federal courts for past actions. Early in our nation’s history, we decided that we did not want to give the Federal courts that kind of power to reach into state treasuries and redistribute taxpayer money.  So all that a plaintiff suing a state university can hope for is an injunction — a form of order from the court that tells the defendant to stop doing something in the future.  There is no looking back at past wrongs when sovereign immunity is in play; only the potential for future violations of the law can be addressed.  This is an exception to sovereign immunity from a Supreme Court case called Ex Parte Young, and it is supposed to be followed quite strictly.

Those paying close attention may recall that this single-minded focus on the future came into play earlier in the GSU case, when the Regents of the University of Georgia system adopted a new copyright policy.  At that time, GSU successfully argued that only actions taken after the new policy was adopted should be considered by the court, since any injunction could only address future actions, which would be governed by the new policy.  The trial court agreed, and the case was tried over specific excerpts from books published by the plaintiffs that were used in the GSU e-reserve system after the new policy was adopted.

Since the trial, however, the GSU policy has changed again. Specifically, the Regents acted to incorporate into that policy the instructions given them by Judge Evans, who found a couple of flaws in the original form of the new policy.  So once again, GSU is asking that they be judged only on the current state of practice, which is the appropriate context for an injunction (which always looks forward).  They are asking that the record be reopened so that, in her reconsideration of the case, Judge Evans would evaluate only excerpts used in GSU’s e-reserves since the original trial and the subsequent amendment of the copyright policy.

If this motion is granted, and it makes sense both under the legal rule of Ex Parte Young and the past history of the case, the publishers would have to look at more recent semesters than were the subject of the original trial, and see what excerpts, if any, from works they own were used for e-reserve after the 2012 ruling.  If they find any that they think are infringing, it would be those materials, rather than the “original” 75 excerpts, that would be the subject of Judge Evans’ reconsideration.

In short, GSU is asking that those “further proceedings consistent” with the Court of Appeals ruling, be focused on a new set of excerpts, ones used by the GSU faculty since the copyright policy was last revised.

If the motion is granted, the new proceedings in the trial court would have a very different look.  There would not necessarily be a new trial, but at least the Judge would have to reconsider her approach to fair use based on what the Court of Appeals has told her, and then apply that revised approach to a different set of readings.  It seems clear that GSU believes that this would improve the chance that she would still find lots of fair uses.  Perhaps they are more confident that the revised policy is being followed and, since it was revised based on the Judge’s instructions, it will still pass muster with her.  Perhaps GSU has been careful not to use many, or any, of plaintiffs’ works since the trial.  And, perhaps, this is a gambit in settlement negotiations.

I will be anxious to see how the Judge responds to this motion, if the case reaches the point for her to rule on it.  I suspect that the publishers will see this request as a kind of trickery, designed to pull the rug out from under them and fight the case on new terrain.  But they knew the boundaries when they sued a state institution, or at least they should have.  From another perspective, this motion reflects an attempt by GSU to be consistent, and even to act with integrity.  If they believe, as I think they do, that they have tried at every turn to employ fair use as it has been clarified for them by the courts, this is nothing more than a plea to be judged on their current understanding and current practice, which seems very fair and appropriate.

 

 

 

Resistance is Futile

This is a guest post by Jeff Kosokoff, the Head of Collection Strategy & Development for the Duke University Libraries.

In an outstanding example of Buzzword Bingo, EBSCO’s Friday press release announcing their acquisition of YBP from Baker & Taylor (B&T) says that they are assembling the tools “to truly streamline and improve administrative (‘back end’) services in ways that optimize the impact these services have on the end user experience” (EBSCO PR:  https://www.ebsco.com/news-center/press-releases/ebsco-shows-major-commitment ).

If B&T was trying to move YBP, then there were likely multiple bidders, perhaps ProQuest, perhaps one or more of the major publishing concerns. After all, YBP is one of a small handful of comprehensive book jobbers still standing and they have well-established relationships with a large percentage of libraries. At its core, this is a business decision, and EBSCO is not a charity. The acquisition is a way to maximize profits at a company that has been very good at doing so. There is real value in creating more seamless and streamlined workflows within libraries, and this is especially true where libraries are facing staffing challenges. This recent acquisition, along with the recent demise of Swets, has certainly allowed EBSCO to extend their customer base and increase engagement.

After the initial shock, I suppose not many in the library community were particularly surprised. YBP faces increasing financial challenges as library print book acquisition expenditures fall. As we would expect, the narrative from the parties was upbeat and filled with promises that nothing would change beyond some wonderful synergies to come. EBSCO is continuing to position itself as the closest thing we have to a soup-to-nuts library information content and services vendor. EBSCO claims to be the largest library discovery service provider (6,000+ customers), the leading e-content provider (360,000+ serials, 57,000+ e-journals, 600,000+ e-books). Over the past 20 years, they have moved from a serials jobber to a reseller of abstracting and indexing, a major serials and book jobber, a comprehensive and state-of-the-art discovery service, a contract publisher and aggregator of a massive amount of full-text content through a diverse portfolio of subject databases, an e-book aggregation platform. EBSCO has a strong engagement with development of the KOHA open source ILS. While the materials outcomes are unclear, EBSCO is even a partner in the Open Access Scholarly Publishers Association. Adding YBP also brings in another major library analytics tool, Collection HQ to join EBSCO’s Plum Analytics.

So, what’s the problem?

  1. Not Enough Competition?

What are the risks associated with giving too much of your business to a single company? What if things go sour? Many librarians have been frustrated with the dwindling choices we have in the jobber market. In the halcyon summer of 2014, my institution felt like it had three choices for our serials jobbing. When Swets went under last fall, we were left with only two choices. The book jobber market has faced so much consolidation over the past 2 decades that those of us who are dissatisfied with our book jobbers do not feel we have many options.

  1. Too Big/Monolithic To Fail?

I tend to agree that EBSCO can leverage this merger to enable efficiencies. Those efficiencies will certainly be best realized if a library commits more resources to EBSCO’s family of library services and systems. Business risk assessment professionals can offer comment here, but doing too much business with a single corporate entity is fraught with obvious risks. The movement by EBSCO and others to promote end-to-end library systems flies in the face of efforts to modularize library systems and services. Many have been working to build interoperable components instead of single systems. Modularity allows one to both mitigate risk and promote flexibility and evolution of the local set of systems over time. How will we feel limited when it becomes difficult or impossible to replace an unsatisfactory component of a monolithic implementation? The more singular one’s commitment to a small number of providers, the impacts of failure and obsolescence grow. And what happens if EBSCO’s corporate parent gets into trouble? Admittedly, EBSCO is probably the most diversified company in our space. In fact, it is a little surprising not to see EBSCO’s Vulcan Industries competing with Demco and Brodart in the lucrative library fixtures space.

  1. Can a wholly-owned subsidiary really remain agnostic?

For those of us in the trenches of emerging e-book workflows, a continuing challenge is metadata supply and alignment. This is an emerging area of practice, and while ProQuest, perhaps the major aggregated e-book competitor to EBSCO, says it will be business as usual (PQ Blog: http://www.proquest.com/blog/pqblog/2015/Support-Continues-with-YBP.html ), it seems like they might be more than a little nervous. Often a book is available on multiple platforms, and one wonders if long-standing meta-data workflow issues between YBP and EBL will receive the attention they deserve. If I were a smaller e-book publisher that does not want to join with EBSCO’s platform, I think would be very anxious about the acquisition.

  1. Can we learn anything from EBSCO’s past behavior?

During my 20-year professional career in libraries, I have witnessed a lot of very aggressive behavior from vendors. In my experience, EBSCO has been one of the most aggressive. In the 1990s, at a time when most discovery providers were content to resell existing databases, EBSCO brought new A&I products to market that directly competed with existing ones in business, health care and the social sciences. While one could argue this drove improvements, the outcome was essentially a doubling of our subscription loads. Combined with exclusive agreements with minor and major periodical publishers such as Time-Warner and Harvard Business Publishing, libraries have sometimes felt that EBSCO was forcing the issue and gaining something of an unproductive advantage. In the discovery space, there are those who feel EBSCO takes an all-or-nothing approach where their systems work great if-and-only-if you also bring along all your subscriptions to their platform.

Consolidation and further amalgamation in the library information services market has been a trend for a few years now. We have fewer ILS vendors, fewer jobbers, bigger players, and lots and lots of financial capital trying to make lots and lots of money in our industry. Perhaps resistance is futile; perhaps it is the only rational choice.

Where does FERPA fit?

When I wrote my last blog post about contract law and the issue of licensing student work for public distribution, several people asked me about FERPA, the Family Educational Rights and Privacy Act.  Basically, the questions amounted to this: Don’t we need to think about more than just the copyright licensing issue when we put student work in public, or when we require students to do their work in public?  And the answer, of course, is “yes.”  That previous post was focused on the licensing question, and made only a passing reference to potential privacy issues.  Here, I would like to look more closely at the issue of FERPA and student work in public, while acknowledging that I am not a FERPA expert.

The examples I gave about the types of assignments that might be made public, or might be done in public from the start, offer an interesting hierarchy regarding FERPA, I think.  So I want to address them in three categories.  First, things like theses, final papers and honors projects that an institution might want to put in its repository, then the issue of art exhibitions, and finally FERPA concerns when students work directly in a public forum.

The conversation started around the idea that a school might want to put final papers from a class, or perhaps capstone or honors papers, into its open access repository.  I noted that, as a matter of copyright law, it was probably enough to inform the students of this intent in the syllabus, so that subsequently handing in the work form an implied license.  I still think this is enough to deal with the issue of copyright, but it is not enough from the perspective of FERPA.  Rather, FERPA requires a written, dated and signed waiver for  educational records, such as these types of assignments, that are “in our keeping,” to be made public.  So for a final paper or project that is handed in to faculty and then released to the public through a repository, a document waiving FERPA in regard to that paper or project must be obtained.  This written document could also serve as an explicit copyright license, but, as I say, it is necessary as a waiver of FERPA, while copyright can be licensed by implication.

The situation is more ambiguous when we ask about art projects that are handed in with the expectation that they will be part of a public exhibition.  Once again, what I said about an implied copyright license for public display applies, but it seems like the FERPA waiver is also often implied.  On the surface there seems to be no difference between the art project handed in for a grade and the final paper or honors thesis.  We know we cannot put out a stack of papers and invite others, even other students, to look through them.  Yet, with art exhibitions, schools seldom obtain FERPA waivers; they simply hang the works, which surely are also “educational records in our keeping,” on the walls of a gallery and invite the public in to look.  My friend Stephen McDonald, who is General Counsel for the Rhode Island School of Design and one of higher education’s foremost authorities on FERPA, often speaks of an “implied pedagogical exception” to FERPA, and I think that construct might apply here.  The Family Policy Compliance Office at the Department of Education, which oversees FERPA compliance, has said fairly often that FERPA is not intended to interfere with ordinary pedagogical practice.  And they have been clear that putting a thesis or dissertation on a library shelf, which also involves public access to an educational record, is not a problem.  Perhaps the art works can be thought of in a similar way.  And it may be important that art is made for display; that is what its creators expect, and inclusion in an institutional art exhibit is desirable for them.

So in this example, it seems that both a copyright license, for public display of an art work, and a waiver of FERPA privacy rights are being implied.  I think it is important that we separate copyright and FERPA in our minds, and think about each of them carefully.  But it is interesting to see how they diverge and converge.

Finally, what do we make of those assignments where students are asked to do their work in public right from the start, either by creating a web page, developing a blog, posting a video to YouTube, or having a class discussion on Twitter?  This is not an abstract question; our faculty are making such assignments all the time.  A library school student I know recently told me that she elected not to sign up for a class because of a requirement that each student post a specified number of tweets.  Once again, I think that the copyright situation is addressed by an implied license.  But what of FERPA? The first question is really whether these kinds of materials are educational records as defined by FERPA in the first place.  The issue is whether the “records” are ever “in our keeping” when the student creates them directly on a public platform.  It may well be that FERPA is not implicated at all in this scenario, based on a strict reading of its definition of an educational record.  And, of course, that reading is entirely congruent with what student expectations must be in this situation; they would hardly expect privacy when their work is a webpage or a set of tweets. In my opinion, however, this does not entirely settle the matter.

Even if FERPA does not apply, some of its principles, based on the idea of protecting our students, are important and should be accounted for.  A couple of years ago I was asked precisely this question, and those interested can read this blog post on the HASTAC site that was written by Professor Cathy Davidson, formerly of Duke and now at the CUNY Graduate Center, based on advice I gave about this type of assignment.  To summarize that advice here, I suggested three important steps to respect student privacy even if FERPA was not implicated by the assignment to work in a public forum.  These steps are, I believe congruent with what I have been saying about implied licenses throughout these two posts.  First, students should know about the requirement in advance; they should be informed by the syllabus while they still have an option not to take the class.  Second, provision should be made for students to participate pseudonymously, a step that would clearly resolve any FERPA problem that might exist.  And, finally, I suggested that provision be made, at least in the instructors own mind, for an alternative assignment that could be available to the student who really needs to take the course but, for whatever reason, does not want to do his or her work in public.  Of course, instructors are entitled to assess the validity of those reasons, consider the pedagogical benefit from public work, and evaluate any proffered reasons why a pseudonym would not be a sufficient solution.

I actually suspect that the recalcitrant student who simply does not want class work done in public is a vanishing breed.  Most of our students today are very comfortable with having their writing, art works, and opinions on the Web.  But when they are not, we should take steps to accommodate their discomfort without compromising the pedagogical value we believe is behind the assignment.  Indeed, the fundamental conviction behind all of this extended discussion about student copyright and FERPA rights is to suggest that these legal regimes can be managed in such a way that students are respected while still taking advantage of the pedagogical opportunities that the digital environment offers.  Neither of these legal structures needs, or should be allowed, to make the Internet a “no go zone” for student work; they just call on us to think carefully and respectfully about that work, and the students who create it.

The truth about contracts

The impetus behind this post is a specific discussion that took place on an e-mail list.  The question under discussion was how to license student work for deposit in an institutional repository.  At one point I said that a license could be created by a simple line in the syllabus for a course that said that certain designated works would be put in the repository, followed by the “performance” (used in contract law to refer to conduct related to the bargain) of handing in those works.  This claim, which I thought was innocuous, was disputed.

The whole discussion reminded me that there are some serious misapprehensions about contracts, contract law, and licensing in the academic world.  So rather than continue the debate on the list, I thought I would offer some basic truths about contracts and licenses in this space.  That way my musings only clutter the in-boxes of those who subscribed, rather than everyone on the list.  And the debate, if needed, can continue, because the comments will be open, as they are for all posts on this blog.  I should add that what I say here is based on U.S. law, and mostly on the Uniform Commercial Code, which has been adopted into the commercial law governing contracts in every U.S. state.

So let’s start at the beginning.  A contract is simply a promise that the law will enforce.  The law does not enforce all promises, but a promise need not be very formal to be a binding contract.  All that is needed is an offer, an acceptance of that offer, and some “consideration,” which simply means that each party must get something out of the bargain.

But there is more to say about contracts.  One of the most important points is that contracts are business documents, intended to accomplish specific goals shared by the parties.  Legal language is less important to a contract than a clear expression of the intent of the parties — what they want the contract to accomplish in their relationship.  Lawyers are actually not the most important people in the drafting of a contract, the parties are, because they know what they want the contract to do.  The cleanest or most formal legal language in the world is useless if it fails to express those intentions.

Perhaps because we so often deal with obscure and lengthy database licenses from vendors with lots of lawyers on staff, librarians tend to think of contracts as big, formal and very serious, even frightening, documents.  But a contract can be very simple, and it need not even be a document.  If my neighbor comes to my door and offers to cut my lawn for $30, and I say OK, we have formed a contract at that moment.  Note what the “consideration” is — a promise to cut my lawn and a promise to pay $30.  Promises are the most common type of consideration in a contract, but an offer for a contract can be accepted by performance.  Suppose I asked my neighbor if he would cut my lawn for $30 and he said nothing.  But later that same day, he does cut my lawn.  I owe him $30 and the law would enforce the promise because my neighbor accepted my offer in a timely way by the act of cutting the lawn — there was an offer, acceptance by performance, and consideration on both sides; I got a neater lawn and he got my enforceable promise to pay $30.

Another reason librarians might think that contracts are formal and serious is because they hear so often that contracts “trump” copyright law.  Since copyright law is a very important federal law, contracts must be an even more serious matter to trump it.  But, actually, we allow contracts to supersede copyright law not because they are so “big” but because they are small.  U.S. Copyright law binds every person who is subject to its jurisdiction, but a contract binds only the parties who agree to it.  A contract is a “private law” arrangement by which two parties (or sometimes more) rearrange their own relationship.  Within that relationship, we will allow parties to agree to give up various rights — under copyright, for example.  They could even surrender their free speech rights in some limited cases.  This is not because contracts are “stronger” but because they are “weaker” then other parts of the law — they only rearrange the rights of those who agree to them.

One way we can tell that contracts are “weaker” in this sense than the law that binds all citizens is that the risk associated with failing to fulfill a contractual promise is usually much lower than it is for a violation of public law.  Contract damages are generally determined by the intended relationship expressed in the contract.  In my example above, if I “breach” the contract by not paying my neighbor, the law could force me to give him “the benefit of the bargain,” which in that case was $30.  In most situations, that would be it; there are no statutory damages for contracts as there are in copyright law, for example, and the goal of contract “remedies” is usually either just to see that the parties get what they bargained for, or, at least, to put them back in the positions they were in before the contract was formed.  As a lawyer, I would never advise someone to do something I believed was an infringement of copyright, but it is possible to imagine situations where breaching a contract could make sense; the classic example is where a business person can make a greater profit if they get out of the contractual relationship even if they have to pay damages.  Such a situation is called an “efficient breach of contract.”

One final general point about contracts before we turn to licenses specifically.  A contract is often “implied” by the way the parties behave.  In my example above we saw that a contract could be formed when the person who received my offer simply acted on it; his acceptance was implied by performance.  Only a very few contracts must be in writing, and they are specified by law.  The copyright law tells us, for example, that transfers of copyright and exclusive licenses must be in writing (see section 210(d)), but non-exclusive licenses can certainly be implied.  Most states require that sales of real property be in writing, through laws referred to as “Statute(s) of Fraud,” but it is quite clear that many other contracts can be oral, or even evidenced by some kind of action.  “Shrink wrap” licenses for software are a good example, where opening and using the product is a sufficient indication that the purchaser has accepted the terms of use (see ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996).

In the copyright realm, implied licenses are actually quite common.  A license, remember, is simply “a revocable permission to commit some act that would otherwise be unlawful” (from Black’s Law Dictionary).  Note that a license is presumed to be revocable unless there is explicit agreement otherwise; for this reason, an implied license is always revocable.  But, as I say, they are very common.  The example we all rely on most, I dare say, is the implied license created whenever someone puts a page up on the Web.  When I look at that page, I am making an apparently unauthorized copy in the cache of my computer, which looks like an infringement.  But courts around the world have recognized that it would be absurd to allow a webpage author to sue anyone who looked at the page for infringement, and have instead found an implied license in the act of uploading a page.  There is an interesting discussion of a case that tested the limits of an implied license here, on Forbes.com.

A license is not always a contract, but most are.  In the case of an implied license to view a web page, one could argue that there is offer and acceptance, but it does not seem that there is consideration, something that each side gets out of the bargain.  So it may be a non-contractual license, but it is a license all the same.

When we turn, finally, to the case of a syllabus that informs students that certain work they hand in will be made publicly accessible through an institutional repository, I think we can now see that all of the elements of a license, and even a contractual license, are present.  There is an offer made — in exchange for a grade and credit in this course, you will give the school a license for IR deposit.  And when the work is handed in, there is a performance from which acceptance of that offer is readily implied.  In this case, I also think there is consideration, since the student gets that grade and credit she bargained for (she could, of course, have rejected the offer by dropping the course, or she could even have counter-offered by asking for different terms), and the school gets a license.  This is a valid contract that creates a license upon which the school can rely.

To say that the license is valid is not the same as saying it is wise to do this.  It also ignores some other issues.  A university might decide, for example, that putting work in a repository implicates privacy rights and therefore requires an explicit writing.  But as a contract matter, the license is real and reliable.  It is presumptively revocable, as explained above.  So the situation might arise where the student decides she now longer wants her undergraduate essay on the web and requests that it be removed.  In that situation I would first want to talk with the student and see if we could find an agreement that would leave the terms of the course assignment intact.  If we could not reach such an agreement, I would suggest that the school should remove the work, because once the license is revoked the continued distribution could be an infringement of the student’s copyright.  But in that instance, the school is then entitled to consider whether the student has met the requirements for credit.  If public distribution is considered a sufficiently important part of the pedagogy, the school could conclude that credit for the course should be revoked. This is simply acknowledging the mutual bargain that exists in all contracts.

As I argued on the list, this form of implied license is not legally different from many teaching strategies that implicate copyright.  Suppose an art class tells students (either orally or in the syllabus) that their final projects will be included in a public departmental exhibition.  Copyright is implicated, and a license is implied when the final project is handed in.  The same would be true if a class assignment required students to create a web page, post a video to YouTube, or have a class discussion via Twitter.  The point here is not to recommend or condemn any of these strategies, but merely to explicate the law that would support all of them.

The truth about contracts is that we deal with them every day.  They need not be formal, and they need not intimidate us.  They are simply the mechanism we use to arrange our relationships in a great many situations, including teaching situations that implicate the copyrights held by students.

Paying the bills

Open access is not free.  By saying that up front, I hope to confound some of the more extreme critics of the open access movement, who sometimes pretend that all OA supporters are dreamy-eyed and woolly-headed librarians who imagine that all information “wants” to be free.  So I start from the premise that open access costs money, but I do immediately need to qualify that statement.  By definition, open access does not charge the consumers of information any fee for access.  It is free in that sense, but not in the sense that there are no costs involved in producing the works or making them freely available.

Of course, for most academic work, the majority of the “first copy” costs are already paid for outside the subscription system.  Taxpayer money, research grants or private university funds support the research underlying scholarship, as well as the time of the authors who produce it.  The work of reviewing and improving both articles and books is also borne by these sources, in large part.  Commercial publishers, then, “free ride” on this investment, which is a sign of a failure in the market.

One truth that lies behind much of the open access movement is simply that there are more efficient ways to produce scholarship than the way it has been done in the past.  Digital communications have brought down the cost of other types of content, but publishers continue to raise prices, arguing, improbably, that there are no significant savings in the transition from print to online distribution.

So here is a simple assertion — we must find ways to pay for open access to scholarship, but simply paying traditional commercial publishers to do it for us would just replicate a system whose failure in the online environment is all too obvious.  Gold, or hybrid gold, open access is NOT a solution IF it is expected to simply replace subscription revenue and does not provide an opportunity for a more realistic assessment of costs.

There is a really nice article by Kevin Hawkins from the University of North Texas Libraries about “How We Pay for Publishing” in the latest issue of “Against the Grain.”  I don’t think the issue is openly available, but there is a pre-print of Kevin’s article in the UNT Digital Library here.  The article is a concise overview of “how we got into this mess” and “how might we get out.”  Kevin concisely summarizes the various proposals that would shift library investments from the consumption side of the research process — where we simply buy the products that are sold only to a limited set of buyers/subscribers — to the production side, where library funding helps support the creation of knowledge products that are available to all.  As Hawkins points out, there is a potential free-rider problem here as well, and he writes about how different possible models can address it.  When he turns to the impact of these models on university presses, he envisions a more mission-driven view of those organizations that would recognize that it is unrealistic to expect them to pay for themselves at the end of each fiscal year.  Instead, we should look closely at costs and benefits, recognizing that increased access is a benefit, and support university presses as well as other organizations that are prepared to experiment with new models for more efficient production and broader access.

Costs, of course, are the elephant in the living room whenever improving access is under discussion.  In a recent blog post on open access books and double dipping, Martin Eve of the Open Library of the Humanities questions the claim that a particular publisher must recoup $17,500 to make a single monograph OA.  Martin’s concern is that the publisher in question may be “double-dipping” by demanding the full-cost of the publication as an up-front OA charge and selling print copies as well.  It seems that the OA charge could be reduced by the amount earned through print or e-book sales, just as journal subscription costs ought to come down as author’s select “open choice” options.  The fact that neither reduction is occurring, at least in a wide-spread way, is a sign that we need to ask much harder questions about the actual cost of production as we make this transition to supporting OA on the production side.  The study announced by Ithaka last month should help us get a better handle on the true cost of publishing a monograph.

Those nations that use central funding to support open access publication — and there are a growing number of those — especially need to look at costs to be sure they are not wasting money.  In this guest post on the Digital Science blog, Jan Erik Frantsvag from Norway considers the path that would simply pay article processing charges (APCs) to commercial publishers in order to achieve open access, and lays out some concerns.  Most especially, he explains why the Norwegian Research Council has decided that the funds offered to researchers to fulfill their open access mandate may not be spent on hybrid publications, where only certain articles are made open access after a fee is paid, while a subscription fee is still charged for access to the entire journal.  Frantsvag cites three concerns that caused the Norwegian government to reject this hybrid model.  First, because it double-dips, as described above.  Second, because hybrid journal APCs are higher than those for other OA publications, raising precisely this issue of cost that we have been discussing.  As more and more government funds are used to pay APCs, it seems likely that we will see more probing questions about cost being asked.  Indeed, if U.S. universities are going to develop campus-based funds to support article process charges, we ought to be asking the same questions, and using caps on our funds to encourage more reasonable APCs.  The third reason Frantsvag cites is simply that money for open access should support innovation and experimentation, not simply go to keeping the old business model afloat.

In each of these examples we see that efforts to encourage open access and find new models for supporting research must necessarily look at how much the production of knowledge products — monographs, journal articles, digital visualizations, etc. — actually costs.  In the past these costs have been obscure to universities, hidden in the steady upward spiral of subscription expenses.  But now we are seeing signs that the academic community is beginning to do what it probably should have done long ago — look closely at the actual costs and begin to evaluate the money we are willing to invest in each form of scholarly dissemination.

Who should we trust?

A recent discussion on an e-mail list, about university open access policies, raised the issue of trust.  The participants correctly noted how important it is that there be some level of trust between faculty, administrators and the library (which is usually charged with managing an open access repository once a policy is in place) in order for an open access policy to be adopted and successfully implemented.  Inevitably, the comments brought out the irony that faculty authors often seem very suspicious about administrator motives when debating an OA policy — fearing that someone is trying to “steal their stuff” — yet are perfectly willing to give that “stuff,” in its entirety and for no remuneration, to commercial publishers.  And they do this even though it is obvious that commercial publishers do not share the fundamental values of academia about research and access.

When one looks a little deeper, it is easy to see, I think, that academic authors do not really trust the commercial publishers either; we hear lots of wry comments about how absurd the current system is, followed by a shoulder-shrug expressing resignation.  It is absurd, but it is what we have got.  “Trust” is probably the wrong word for what authors feel as they give away their work.

Perhaps it really is just resignation in the face of how things have been done for hundreds of years.  There was a fine column published recently in the Educause review that encapsulates this scholarly stagnation with a story about a Buddhist monastery where the practice of tying up the monastery’s cat, begun because it disrupted the abbot’s lessons to novices, continued for centuries, through many successive abbots and cats, until it came to be invested with a false sense of significance.  Mark Edington makes the case that we have become unreasonably wedded to a system that once had considerable utility for a set of circumstances that no longer exist, and are reluctant to embrace the changes needed for our new environment.  There certainly is an element of “tying up the cat” in our continued dependence on commercial publishers and our willingness to pay them to do things that, in many cases, we can now do better and more economically ourselves.  It is simply easier to do what we have always done, and to let the dissemination of scholarship remain in the hands of those who have done it for us for 300 years.

It is not that we exactly trust commercial publishers, nor do we exactly distrust them. We may recognize that the values and goals of the commercial publishing business are different from, and even in conflict with, the best interests of scholarly authors and of scholarship itself.  Perfectly nice people, working to advance their own interests as best they can, come in to conflict as the conditions for research and teaching change. And a real ambivalence is created because of how interwoven the parts of the academic enterprise are.  More than just inertia is a work; important aspects of the academic enterprise remain interlocked with traditional forms of publication.

Most obviously, the rewards system in higher education, which by definition has worked well for many of our most influential faculty, is highly entwined with traditional journal and monograph publishing. In the digital age, when we can actually learn so much more relevant information about the uses made of an individual scholarly article, it may be absurd to continue to look at impact factor and the “brand name” of the journal as evaluative measures, but the systems we have built around those factors are well entrenched.  Change seems inevitable, but it will be slow.  One of my major concerns is the cost of this snails’ pace, and the danger that “the usual suspects” will succeed in co-opting the new opportunities and convincing us to pay them for open access and alt-metrics, when we should look for ways to save money and preserve more local control over these new, digital opportunities.  An example of this danger can be found in the “Open Access Roundtable” sponsored by the Copyright Clearance Center that warned about the complexity of article processing charges.  The CCC, of course, sees itself as a solution to that problem, while the role of universities is simply to pay others, through them, for the benefits of open access.

Late last year Jason Schmitt, a professor at a small liberal arts college, posted a column in the HuffPost called “Academic Journals: The Most Profitable Obsolete Technology in History.”  He makes a good point.  It seems odd that academia, which should be in the forefront of leading managed change, should be propping up a technology that has outlived its usefulness.  We would laugh at people who continued to buy buggy whips well into the automobile era, yet we, as academics and librarians, are in danger of becoming those very laughing-stocks. Schmitt focuses on ideas for change laid out by Sam Gershman and John Bohannan and stresses the societal obligation we have to make the knowledge created in our colleges and universities more accessible.

Of course, trust is a key element in moving toward the open access future that Schmitt, like so many others, envisions.  The systems we are moving toward will not be simple; it will involve multiple and diverse business models, and accommodation for lots of different needs.  We will need to decide what parts of the scholarly communication system we can take over on our own campuses, where we should focus collective funding, and what elements might still be most reasonably “outsourced” to commercial firms.  These decisions will be difficult, and different on each campus.  At each stage we will need to decide who we trust; who are the right partners for this part of the journey.

The key to those trusted relationships, I think, is common values.  As we move toward a more open future for scholarly communication, we need to focus on what are the best interests of scholarship and of individual scholars.  The best way to overcome distrust between faculty and administrators, for example, is to ground the conversation on shared or complementary needs and goals — faculty want maximum attention and impact for their work, and administrators want to build and protect the reputation of the institution; open access, implemented thoughtfully, can bring those goals into alignment. Libraries, which are traditionally highly-trusted entities on campus, must keep their focus where, I hope, it has always been, on making teaching and research easier and better.  In all of our conversation about changing the system of scholarly communications, we should keep that goal as our foundation.  Even more importantly, we need to “walk the talk.”  In our decisions about how we spend our money, especially, we should be guide by, and be seen to be guided by, those best interests of our scholars and our institutions. I firmly believe that those interests will lead us, by the shortest reasonable route, to our open future.

After another defeat, what will GSU publishers do in 2015?

Back in October the 11th Circuit Court of Appeals issued its ruling in the Georgia State copyright infringement suit brought by three publishers and the Copyright Clearance Center to try to end reliance on fair use for course readings that are digitized and made available to students in a closed online forum.  As has been widely reported, that decision looked like a win for publishers, in that it vacated the lower court decision that largely favored Georgia State University, and it remanded the case back to the District Court for further proceedings.   But what looked like a win was very dissatisfying to the publisher plaintiffs — Cambridge University Press, Oxford University Press and Sage Publishing.  In the course of the opinion, all of the radical changes to copyright law that they hoped to advance with the lawsuit – the imposition of the 1976 Classroom Copying guidelines as a maximum limit rather than a safe harbor, the idea that the copy shop cases involving commercial course packs were appropriate precedents for in-house electronic reserves, a move from analysis of individual claims of fair use to a comprehensive impact analysis, and a statement that non-profit educational use did not necessarily favor fair use — were rejected by the Court of Appeals.

The publishers were very unhappy with this decision, even though it gave them the outcome they desired in the specific conflict.  They are looking for a radical realignment of fair use; the actual case is relatively unimportant, I think, compared to this desire to change the landscape so that many more licenses for educational institutions would be required.  So they asked the entire 11th Circuit to rehear the case (en banc) instead of letting the decision of the usual three judge panel stand.  Their petition for rehearing is a wish list of the principles they would like to have govern copyright in academia, which, of course, all point to paying those publishers more money.

On Friday the 11th Circuit rejected this petition for an en banc rehearing, as well as the petition for rehearing filed by GSU.  The Court did not comment on the rejection; they simply denied both petitions, thus leaving the opinion of the Appellate panel as the Court’s final word on the case.

For libraries, this means we are still in the uncertain and murky position I describe back in October.

For the publishers, there are a dwindling number of options left for them:

  1. They can petition the Supreme Court to hear the case.  This is really the only option that is available if the plaintiff publishers still want to fight for the ridiculous arguments they have been championing throughout the six and a half years of this lawsuit, so I will not be surprised if they do this.  I am sure the lawyers representing the publishers are advocating for this; so is the Copyright Clearance Center, in all likelihood, and they are paying the bills.  But the Supreme Court accepts only a tiny fraction of the cases they are asked to consider — the number is less than 4% of cases for which the petitioner has paid the usual filing fees (it is much lower for cases submitted where the plaintiff, usually a prisoner, claims that they cannot pay the costs).  The cases the Supreme Court is most likely to accept are those where there is a split of opinions among the different Circuits of the Court of Appeals, and that is not the case with the GSU opinion.  So this is a long shot for the publishers, but their only option now if they hope to save any of those principles that they have gone to war to establish.
  2. They can seek the rehearing by the District Court that is the point of a remand from the Appeals Court. That hearing must be “consistent” with the analysis in the 11th Circuit ruling, so it is not likely to gain much for the publishers.  The best they can hope for here would be a slightly tighter e-reserves policy at GSU that they could wave under the noses of other universities.  But that would be a victory for them that would feel an awful lot like a loss.
  3. Finally, they could settle the case.  This would be the rational approach, but the plaintiff publishers (or those who are calling the shots for them) have shown little taste for reasonableness.  They have poured a lot of money into fighting to undermine fair use for education, and settling now is probably less sensible, from their perspective, than it would have been months or years ago.  And, to be honest, GSU has little to gain from a settlement at this point; they might just as well wait for further proceedings in the District Court.  A settlement earlier in the case might have given the publishers a lever to use in negotiations with other institutions, but that opportunity faded when the 11th Circuit rejected all of those principles that the publishers were after.  Now they have a much weaker hand.

Overall, I think we will see a petition for a Writ of Certiorari, which is what you file to ask the Supreme Court to consider your case.  I doubt it will be granted, but I expect that 2015 will be a year of tilting at windmills for the publishers in this case.