Category Archives: Libraries

Steps toward a new GSU ruling

It looks more and more like we will get a new ruling from the trial court in the Georgia State case about what is or is not fair use for digital course readings.  The case, of course, was reversed and remanded to the trial court after the publishers appealed the initial decision to the 11th Circuit, with instructions to produce a new opinion consistent with the Court of Appeals ruling.    The publisher plaintiffs then asked the trial court to reopen the record in the case and apply the putative new fair use analysis to a different, more recent, set of readings employed by the GSU faculty.  The University opposed this motion, arguing that what would amount to a whole new trial was not necessary.

Last week, District Court Judge Orinda Evans dismissed the motion to reopen the record and issued an order about briefing the court on what a new analysis of fair use for the original excerpts considered in the trial should look like.  Judge Evans wrote that “It does not make sense at this juncture to spend months, probably longer, on what considerations might govern if Plaintiffs prove they are entitled to injunctive relief by virtue of the claimed 2009 infringements.”  The motion is dismissed without prejudice, meaning that the plaintiffs can renew it at a more appropriate time, although I must admit that I do not see what that would mean if the case is to go forward on the original set of readings.

It appears that once again the publishers have failed in an effort to broaden the scope of the case beyond the item-by-item fair use analysis that has already been done and to possibly reintroduce some of the broad principles that they really want, which have so far been rejected at every stage.  Now Judge Evans has explicitly told them, in her scheduling order, that what is required is “consideration and reevaluation of each of the individual claims” in order to redetermine “in each instance… whether defendants’ use was a fair use under 17 U.S.C.  section 107.”  Her schedule for the briefs is tight, with an end of the briefing now scheduled just two and a half months from now.  Presumably we would still have a long wait while Judge Evans applies revised reasoning about fair use to each of the individual excerpts, but it looks a bit more like that is what is going to happen.

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.

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.

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.

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.

Getting into print the hard way

I hope I will be forgiven some self-promotion if I point out that my first book (that’s a little like saying my “first” marriage – so far it is the only one, and no other is anticipated, but one should never say never) has just been published. It is a handbook of intellectual property designed specifically to address the needs and concerns of researchers and teachers, and it was published on December 10 by the Association of College and Research Libraries. It is available for purchase on the ALA Store site here. There is also a PDF made available under a Creative Commons Attribution/Non-commercial license on the ACRL site.  I also expect to have a PDF in the DukeSpace institutional repository soon.

As a last piece of book promotion, I will note the blog post about the book on the Author’s Alliance web site, which was largely written by me.

All that aside, the real purpose of this post is to tell the story of publishing this book, because I think it is instructive for thinking about scholarly communication today. If I had to start with a moral for the whole story, it is that I should have started with the librarians, because they are a group — the ACRL was wonderful to work with — that can publish in the way most consistent with academic values and needs.

The story begins when I was contacted in 2009 by an editor for the University of Chicago Press, who suggested that I should write a handbook on IP for scholars.  I was immediately interested, and, at the editor’s request, wrote first a proposal and then drafts of the first two chapters.  Those chapters were sent out for review and we received both helpful suggestions and a recommendation to continue to develop the book from three reviewers.  With that step complete, the U of C Press and I signed a contract in late 2010, and I set out on a long and difficult journey to finish and publish the book.

The writing process took me considerably longer than I expected; no surprise there, of course.  When I apologized to my editor I was assured that it was OK; they would be interested in the project, they said, whenever it was complete.  During this time, however, I got the first indications that this would not be a smooth relationship.  I sent in chapters as I finished them, as the editor encouraged me to do, but did not get any of the promised feedback as I progressed.  For a couple of years I was essentially writing in a vacuum.

I finished writing in March 2013 and, in May of that year, finally sent the Press the completed draft of the manuscript, which they sent out for review.  The Press’ policy is that they must have two reviews of the full manuscript that recommend publication before they refer the book to their board for a final thumbs up.  So I began to wait.  After six months I checked in and was told that the Press had sent the manuscript to three reviewers.  One had sent in a report with a recommendation to publish.  One had reviewed just two chapters of the book, asserting that they were only qualified to comment on a portion of the subject matter.  The editor had not yet heard from the third reviewer, and without two full review that recommended publication, they could not move ahead.  The editor told me that the third reviewer would be reminded and that the Press would also look for an alternate reader.

Five months after this, having still heard nothing, I inquired again.  My e-mail went unanswered.  A second e-mail did elicit a response, which was that they were still waiting for that third reviewer.  There was no sign they had ever sought that additional reader.

At this point I was pretty frustrated.  Five people had read at least part of the manuscript, and all had recommended publication.  All of them had also made really helpful suggestions for improving the text which I tried to adopt. But the U. of C. Press was still passively waiting for that one final reader so they could comply to the letter with their self-created rules.  What bothered me most was the apparent lack of effort and commitment I was getting from the Press.  After talking with several academic authors about my situation, I decided to withdraw the book from the U of C Press.

When I told my editor about this decision, the first reaction was to try to talk me out of it and ask me to have patience.  The second reaction was to remind me of our contract and to suggest that I had no alternative but to wait it out with the U. of C.  In response, I suggested two concessions from them that would make the waiting easier.  First, I asked (for the first time, I am embarrassed to admit) for some form of open access to a version or a part of the book.  Second, I asked to be paid half of the advance we had agreed on as a sign of the Press’ commitment to the project.  I was told, however, that the first request was impossible because they needed to protect potential sales for the book, and that the second was contrary to their policy.  In regard to the latter issue, I was pointed to specific language in my contract about when the advance would be paid.  So I looked.  It turns out that the contract language was actually different from what the editor told me it was.  It stated pretty clearly that I would be paid the advance when I sent in the manuscript, not, as I had been told, only when and if the board approved final publication.  I have no idea why the contract language was what it was, or if it was really different from what the editor thought it should be.  I had not changed or negotiated that part of the agreement back when it was signed.  Maybe the Press just figured that no one will read their contracts, so they could claim whatever they wanted about them.

Anyway, I brought this discrepancy to the attention of my editor.  That was the last contact I ever had with that person.  A few days later I got an e-mail from the Director of the Press, apologizing to me for the treatment I had received and confirming that the Press had breached our contract by not paying the advance in a timely fashion.  I was told that I would be released from the contract AND that the Press would still pay the advance I was owed.  Over the next few weeks, we signed a formal letter releasing me to publish the book elsewhere and I received a check for the long-delayed advance.

On the plus side of this relationship, I did get quite a lot of very helpful feedback for my manuscript from the readers (although, of course, I am solely responsible for whatever errors remain).  Also, when faced with the clear evidence that they had not lived up to their side of the bargain, the Press did the right thing (maybe just to get rid of me!).  But on the negative side, I got almost no help from the editor in actually developing the manuscript, the “management” of peer-review was lackadaisical, and I wasted over a year after the book was finished waiting for the Press to get its act together before I asserted my freedom to start looking for another publisher.

After this experience, I spoke to one other commercial publisher, and this time made the expectation of an open access copy a condition from the beginning.  That led to a very short conversation.  So finally I did what I should have done from the start — work with the ACRL.  That experience was smooth, collaborative, and focused on the best way to make my work serve the needs of the audience it was intended for.  The ACRL arranged for excellent and expeditious copy-editing and indexing.  They agreed to immediate open access for the entire book. When there was a problem with the first print run of the book, the ACRL took immediate responsibility and re-printed the whole run.  The process took less than six months from signing a contract to publication.

From this experience I take away three lessons, which I think are worth sharing.  First, the claims about how much effort publishers put into a new book, and the help they provide to authors, are at least sometimes exaggerated.  I was working with a prestigious university press on a book they had solicited in the first place, and yet did not get nearly the kind of assistance or interest that I sometimes hear promised.  Second, it is extremely important to read, negotiate and save a copy of the publication contract.  That my book is now in print is largely due, I believe, to the fact that I could go back to the actual language of our agreement in order to convince the U. of C. to release me to find another publisher.  And finally, as I said at the beginning, libraries and library organizations, in my experience, understand the needs and goals of scholarly authors better than commercial presses.  As the future of academic publishing unfolds, I strongly hope that more and more of it will be in the hands, or under the oversight, of libraries.

 

 

Cancelling Wiley?

Because they were spaced almost a full year apart, I really did not connect the dots when two Canadian universities announced that they were cancelling their “Big Deals” with John Wiley & Sons publisher.  The Times Higher Education reported on the decision at the University of Montreal back in January 2014, while the announcement made by Brock University came only a few weeks ago.  I would not have considered this a trend worth commenting on had it not been for conversations I had last week at the Fall CNI Membership meeting.  During that meeting, two different deans of large university libraries told me, unbidden and in separate conversations, they they were also considering ending their deal with Wiley.  I was struck by the coincidence, which caused me to remember these two announcements from Canada and to begin to ponder the situation.

Two different questions occurred to me when I thought about these four significant cancellations or potential cancellations, all directed at a single publisher.  First, why was Wiley the focus of this dissatisfaction?  Second, what is the next step?

As for what the complaints are about Wiley, the answer is pretty much what it always is — money.  The THE article and the Brock University report both tell us that exchange rates have made the annual “higher than the inflation rate” price increases for these packages even harder to bear than usual.  They also point to another problem.  Pricing is based on the large number of titles included in these package deals, but many of those titles are not very useful.  The Brock post notes that the Wiley package has a significantly higher cost per use than does their Elsevier package, which presumably reflects the fact that many of the titles the University is paying for in the package simply do not get used.  The same reality is probably behind the fact noted by THE that Montreal would subscribe to less than 25% of the titles that had been included in the package it was cancelling.  It would be interesting to find out, a year on, how much those other titles have been missed.

In my conversations with the two library deans, much the same thing was said about Wiley — demanding a large price increase, being inflexible in negotiation, and selling “a lot of junk that I don’t need” in the package.  Libraries are beginning to discover that they do not need to put up with those tactics.  Publishers often tell us that they are publishing so many more articles, which justifies their price increases, and they tell us how selective their flagship journals are.  But when we look at these big deals, it is clear that selectivity is not an across-the-board approach; many articles that are not very useful just slide down the hierarchy to get published in journals whose main purpose is to pad out a “big” deal.

To me the more important question is “what now?”  Unfortunately, many times when a library makes this kind of decision there is actually little money saved, since the funds simply go into re-subscribing to a smaller, selected list of titles from the same publisher.  But presumably some of these cancellations result in dollars saved.  And when they don’t, I propose that libraries ought to reexamine their approach.  When you have cancelled a dross-laden package, think twice before reinvesting all of that money in as many individual subscriptions from the same publisher as possible; make a careful decision about where the division between useful titles and unnecessary ones really lies.  Because here is the thing — money that can be saved and reinvested in open access projects will give us a higher return on our investment, because those projects will provide greater access.

It seems clear that, over time, libraries will need to move more and more of their spending away from the consumption side of scholarly production and do much more to support the creation and dissemination of knowledge directly.  Commercial publishers hope to capture those dollars as well, but one of the real benefits of supporting open access can and should be more freedom from businesses addicted to 30% profits.  I would like to challenge libraries to consider, when they have to cancel, using the money to support non-profit or lower profit open access projects.  Work with a society to provide subvention for a scholarly journal to become OA.  Work with your university press to support OA monographs.  Finally, even if not compelled by immediate budget realities, think about making some strategic cancellations in order to take these kinds of steps.  We know that open access is our future, and it is vital that we take control of that future before others take it from us.

I don’t know if Wiley is the worst offender amongst the large commercial publishers, or whether there is a real trend toward cancelling Wiley packages.  But I know the future of scholarship lies elsewhere than with these large legacy corporations.  The process of weaning ourselves from them will be slow and drawn-out.  But especially when the cancellations are going to happen anyway, we should have the idea of using the funds to advance the transition to open access foremost in our minds.

For a similar, but likely better informed, perspective on the idea of cutting subscriptions to support open access, please read Cameron Neylon’s post on “Letting it go — Cancelling subscriptions, funding transitions,”which ties the idea in his title to the discussion going on in the Netherlands about Elsevier’s big deal.

Swimming in muddy waters

Since the ruling from the Eleventh Circuit Court of Appeals in the Georgia State copyright case came out two weeks ago, most commentators have come to the same conclusions.  It is a mostly negative ruling, in which publishers actually lost a lot of what they were fighting for.  Georgia State also lost, in the sense that the case is not over for them and they are no longer assured of being reimbursed for their attorney’s fees and court costs, as Judge Evans had originally ordered.  But apart from those parties to the case, has the library community lost by this decision, or gained?  Once again, what we have gained is mostly negative — we know that we do not have to strictly observe the 1976 Classroom Copying Guidelines, we know that the cases involving commercially-produced course packs do not dictate the fair use result for e-reserves, we know that 10% or one chapter is not a bright line rule.  But there is little benefit in knowing how NOT to make fair use decisions; it is easy to see why one commentator has pled for bright line rules.

One affirmative point we can take from the case is that we know we still can, and must, do item-by-item analyses to make fair use decisions.  But what exactly should the process for those decisions look like?

As Brandon Butler from American University has pointed out, the decision-making processes will be different when we are assessing uses for teaching that are transformative versus those, like e-reserves, that are not.  We still have a good deal of freedom when the use is transformative — when the original material becomes part of a new expression, a new meaning, or a new purpose.  And this is important for a great deal of scholarship and teaching.  We should not lose sight of this important application of fair use, or assume, incorrectly, that the 11th Circuit ruling creates new limits on transformative fair use.

But when we must make decisions about digital course readings, we need to apply the “old-fashioned” four factor test.  What does it look like after the Appeals Court ruling?  I am afraid it has gotten pretty muddy:

The first fair use factor — the purpose and character of the use — continues to favor fair use whenever that use is undertaken by a non-profit educational institution.  If a commercial intermediary is involved, as was the situation in the course pack cases, this is no longer true.  But where there is no profit being made and the user is the educational institution itself, the first factor supports a claim of fair use.  And that is where the clarity ends.

The second factor — the nature of the original — can go either way, depending on the specifics of the work involved.  Is it more factual or interpretive?  This is a judgment call, and one which librarians may be hard-pressed to make when processing a number of e-reserve requests in a discipline they are unfamiliar with.  The good news is that the Court said that this factor is relatively unimportant, so the safest course may be to consider this factor neutral; call it a draw — at least where the item is not clearly creative — and move on.

On the third factor we thought we had a rule, even if many of us didn’t like it — 10% or one chapter was the amount that Judge Evans said was “decidedly small” and therefore OK for fair use for digital course readings.  The bad news is that we no longer have that rule.  The good news is that we no longer have that rule.  The 11th Circuit panel wanted a more nuanced approach, that balances amount with the other factors and especially looks at how appropriate the amount used is in relation to the educational purpose.  When the other factors line up in favor of fair use, this approach could well allow more than 10%.  If the other factors tend to disfavor fair use, only a much shorter portion might be permissible.  It is just very hard, after this ruling, to have clear standards about the amount that is usable, and that makes things difficult for day-to-day decisions.

With the fourth factor — impact on the market for the original — the 11th Circuit made things even more unclear.  The panel actually affirmed the lower court in its analysis of this factor, emphasizing that it is permissible to take into account the availability of a license for the specific use as part of evaluating this factor.  So if a license for a digital excerpt is unavailable, does that mean this factor favors fair use, as Judge Evans said?  Maybe, but the 11th Circuit added two complications.  First, it said that the Judge should have included the importance of license income to the value of the work in her fourth factor reasoning, rather than treating it as an additional consideration for breaking “ties.”  Second, they said that the fourth factor should have more weight in non-transformational settings.  How are we to put these instructions into practice?  Libraries do not have access to publishers’ accounts, as the judge did, so we cannot assess the importance of licensing income (nor can we trust publishers to give us straight answers about that importance).  And what does more weight mean?  If there is no digital license available, does more weight on this factor mean more room for fair use, perhaps of a larger excerpt?  Again, maybe.  But it also seems to mean that where such a license is available, even 10% or one chapter might be too much for fair use.

How does one swim in water that is this muddy?  The answer, of course, is very carefully.  We must keep on making those decisions, and we do have space to do so.  The fair use checklist, by the way, received a relatively sympathetic description from the 11th Circuit, but not a definite embrace.  At this point, my best advice is to keep on doing what we have been doing, thinking carefully about each situation and making a responsible decision.  I would recommend a somewhat more conservative approach, perhaps, than I might have done three weeks ago, especially when a license for a digital excerpt is available.  But the bottom line is that the situation is not much different than we have always known it to be, there is just a little more mud in the water.

GSU appeal ruling — the more I read, the better it seems

Those of us who heard the oral arguments in the Eleventh Circuit Court of Appeals last November, in which the publishers appeal of the District Court ruling favoring fair use in their copyright infringement lawsuit against Georgia State was heard, mostly expected a discouraging result from the Appellate panel. An initial or cursory reading of the opinion issued by the panel of the 11th Circuit on Friday might even confirm those fears.  After all, the fairly positive ruling from the District Court is reversed, the injection and the order for the publishers to pay GSU’s costs and attorney’s fees are both vacated, and the whole case is remanded back to the District Court to reconsider.  But once one begins to read carefully, the panel opinion gets much better.  All of the big points that the publishers were pushing, which consequently are the really bad potential rulings for higher education, go against the publishers.  In many ways, they won a reversal but lost the possibility of achieving any of their most desired outcomes.  Higher ed didn’t exactly win on Friday, but the plaintiff publishers lost a lot.

There is a thorough and smart analysis of the ruling from Nancy Sims of the University of Minnesota found here.

For those of us struggling to make responsible fair use decisions on a day-to-day basis, this Appeals Court ruling doesn’t actually change much.  The message for us is that it could have been much worse, the case is far from over, and we must just keep on making the same kind of reasoned and reasonable fair use decisions we have been making for years.

What we got from the three-judge panel of the Eleventh Circuit on Friday is a mostly negative ruling that outlines where both Judge Evans of the District Court and the plaintiff publishers are wrong, as the panel thinks, about fair use.  To be exact, two judges — Tjoflat and Marcus — tell us those things.  The third judge, Vinson, concurs in the result — the reversal and remand of the case — but would have accepted virtual all of the publishers arguments and closed the door on fair use for even very small classroom readings.  His concurrence suggests that getting an opinion together was probably a difficult process involving a lot of compromise (it took eleven months), and it also tells us how bad the opinion could have been for universities.  Instead, what the panel majority issued is mostly bad for the publishers.

In my opinion, there were five major principles that publishers wanted to get from this lawsuit, and in the Appeals Court ruling they lost on all of them:

  1. Publishers wanted the Appeals Court to hold that Judge Evans should have ruled based on the big picture — the large number of electronic reserve items made available to students without permission — rather than doing an item-by-item analysis for each reading.  Instead, the Appeals Court affirmed that the item-by-item approach was the correct form the analysis should take.  This, of course, is the key that allows universities to make individualized fair use decisions, and it rejects the attempt to force all schools to purchase a blanket license from the Copyright Clearance Center (which was, in my opinion, the fundamental goal for which the case was filed in the first place).
  2. The plaintiffs wanted a ruling that non-profit educational use did not mean that the first fair use factor always favored fair use.  They wanted the Appeals Court to hold that where the copying is non-transformative, and both Judge Evans and the Appeals Court felt that the copying at issue was non-transformative, the first fair use factor does not favor the defendants, even when they are non-profit educational institutions.  But the Court of Appeals correctly applied Supreme Court precedent and held that the first fair use factor still favors fair use for such “verbatim” copying when it is done for an educational purpose without profit.
  3. The Appeals Court held that the so-called “course pack” cases, which rejected fair use for course packs made for a fee by commercial copy shops, were not controlling precedent in the situation before it, where GSU was doing the copying itself and made no profit from it.
  4. The publishers wanted a clear statement that the Classroom Copying Guidelines were a limit on fair use for multiple copies made for classroom use, defining a maximum amount for such copying of 1000 words.  They lost there too; the panel held that the Guidelines were intended as a minimum safe harbor and did not define a limit on fair use.  Therefore they do not control the decision for this type of copying.  Instead, the panel rejected the 10% or one chapter rule applied by Judge Evans as too rigid and instructed her to use a more flexible approach that takes account the amount appropriate for the pedagogical purpose.
  5. Finally, the publishers were hoping that the Appeals Court would reject the idea that the availability of a license for a digital excerpt was relevant to the fourth fair use factor; they wanted a rule that says that any unlicensed use is an economic loss for them, even if they have decided not to make the desired license available.  They lost that too; the panel affirmed that the District Court was correct to consider the availability of a license for the specific use when evaluating market harm.

These losses, which constitute the heart of what the publishers were hoping to achieve when they brought the lawsuit, are probably final.  They are now binding precedent in the 11th Circuit, and persuasive throughout the country.  The publishers could presumably appeal to the Supreme Court, but it seems unlikely the current Court would take the case because there is no split amongst the Circuit Courts, only a growing consensus about fair use.

So if the publishers lost on everything that really mattered to them, why was the case reversed?

First, as I have said, this is a big loss for the publisher plaintiffs, but it is not a win for GSU.  With the reversal of the District Court ruling and the injunction and fee award vacated, their copyright policy is again up in the air.  And, of course, they have lost the immediate prospect of collecting about $3.5 million in costs.  But for now, they, like all libraries, should probably just carry on with their normal practices and wait to see what happens on remand.

When (if?) the case gets back to Judge Evans, who I very much doubt wanted it back, the fair use analysis will look somewhat different. The Appeals panel found specific errors in her analysis of the second and third fair use factors. On the second factor they have told her that she cannot presume that the works in question are all “informational.” She has been told to do a work-by-work evaluation, but also told that this factor is not very important.  On the third factor, the amount used, the panel said that her bright-line rule of no more than 10% or one chapter was too rigid (as would have been the much lower bright-line rule the publishers wanted).  Here too, the Appeals Court wants a more nuanced and fact-specific analysis, looking at both quantity and quality (the heart of the work).  Significantly, they have told Judge Evans to look at the pedagogical appropriateness of the excerpt when determining how the amount factors into a fair use analysis.  Since this corresponds with what many of us tell campus faculty — use only what you really need and no more —  it is nice that the panel approved.  Finally, Judge Evans has been told to give the fourth factor — market harm — more weight, rather than counting all the factors equally.  This would probably, but not certainly, result in fewer findings of fair use.  Instead of the split we got — 43 fair uses versus 5 infringements (plus 26 for which there was no prima facie showing of infringement)– there would probably be a different division.  Maybe 30 excerpts would be fair use and 18 infringing; who knows?  But I think we should consider whether or not getting to that point really benefits anyone.

Which brings me to considering what the various players should do now, in light of this ruling.

The publishers, as I say, have pretty much lost even as it looks like they were winning.  There is no good that can come out of a remand for them.  At best they will get that different division between fair use and infringement as a result, and will be able to use it to spread a little more fear amongst academic libraries about the uncertainty of fair use.  But that is not their real goal, I hope.  They were hoping to radically change the landscape, and they have failed spectacularly.  If there is any common sense left in their board rooms and executive suites, they need to considering settling with Georgia State and then engaging in real, good-faith negotiations with higher education and library groups.  Don’t open those negotiations with threats, as you did before.  We now know how toothless your threats are.  But it is still the case that libraries and faculties would like some standards they can follow that are realistic in light of what the courts have told us.  There is no windfall for publishers in such negotiations, but there might be some stability, not to mention the savings they will realize if they stop wasting money on foolish and unavailing litigation.

As for academic libraries, this long, drawn-out case, although not over yet, appears to have been much ado about nothing.  We still should be making careful, responsible and good-faith decisions about copyright and fair use, just as we have done for years.  We need to educate ourselves, look at the array of precedents we have from the federal courts, and continue to do our best.  There has been no revolution, and no dramatic alteration of the conditions under which we do our work.  The bottom line is that, after this ruling, libraries should just keep calm and carry on.