Security blankets?

The report that some major music companies are considering a blanket licensing arrangement with college campuses whereby the schools would pay into a central collecting agency and the music industry would stop its campaign of litigation, has, quite understandably, generated a lot of Internet buzz. Neither the technorati nor academia really seem sure how to react. To the folks at Techdirt, this is a terrible idea that would amount to a “music tax.” At the Electronic Frontier Foundation, on the other hand, this is official sanction for an idea they have been advocating for a long time. Ars Technica is more cautiously optimistic, and warns against a knee-jerk reaction that anything proposed by the music industry must be bad.

What caught my eye in all the debate, however, was a quote in the Ars Technica piece, attributed generally to EDUCAUSE, in which the licensing scheme was described as “a covenant not to sue.” Certainly an end to the lawsuits and threats of lawsuits directed against students who share music across campus networks would be welcome. But I find the phrase a dangerous gloss on blanket licensing schemes, and it prompts me to consider just how much security these blankets really offer.

The starting point, of course, is to recognize that a license, even a blanket license, is private law — a contract between parties that is binding only on those parties. Such licenses do no impact the rights or obligations of anyone who is not part of the agreement. Thus if three of the four major record labels signed up for a blanket license, and thus promised not to sue college students, the fourth label could continue to pursues such lawsuits unimpeded.

Recognizing this legal situation is especially important for understanding the Annual Campus License offered to institutions by the Copyright Clearance Center, which is a blanket license that much more directly impacts the scholarly communications system. Under that license, some percentage of the publishers who license their works through the CCC (thus a percentage of a portion) agree to accept a blanket payment in exchange for permission to make all of the uses of covered content that the campus wants for the year. Uses covered by the license include classroom distribution, e-reserves, inclusion in a course management site and course packs, but not interlibrary loan. The license applies only to textual material produced by the participating publishers; music and video, as well as text published by non-participants, is simply outside its scope.

Campuses seem to approach this license in two different ways. Some see it realistically as but one tool in the struggle to use copyrighted content in responsible ways. For those campuses, the license may help save time and make costs more predictable, but it will not necessarily streamline the permissions process, since it will require that each work for which permission is needed be checked against the list of participants in the license and individual arrangements sought for items not included therein. Other campuses regard the ACL as a kind of covenant not to sue, assuming that they are safe, or at least safer, regardless of how careful (or not) their permissions process is, as long as they pay the large cost of the license. By this logic, finding the items used that are both infringing (i.e. not fair use) and not covered by the license would be a difficult and unrewarding task for potential plaintiffs, even if they do not participate in the ACL. And there might even be peer pressure within the publishing world not to go after ACL subscribers, since they have an agreement with, and are paying lots of money to, many of the big players. The CCC is careful not to endorse this view of the license, but there are persistent whispers along these lines in the academy and even some anecdotes about individual marketers making these types of assurance “on the QT.”

One aspect of these blanket licenses that I think deserves attention on college campuses is their resemblance to the “big deals” for periodical databases that many academic libraries signed onto in the past decade or so. In those deals, a high but relatively predictable price is paid for access to lots of content, a significant portion of which is probably not really usable in the specific setting. Some libraries have come to regret these deals and to long for the days of disaggregated purchases of content, when decisions could be made based on actual expected use; the classic cost/benefit analysis. A similar dynamic seems likely around blanket licenses, and institutions may have even less control over their costs with copyright licenses than they did with the big serials purchases. In the serials world, we typically negotiated around two cost control mechanisms – the ability to cancel some small percentage of little used journal titles within the scope of the larger collection and/or a cap on the annual increase in subscription fees. It seems unlikely that the licensors for either the music or the publishing industry would agree to allow campuses to delete some providers whose content they do not expect to use from the license in order to reduce costs. And we just do not know what annual price increases will look like for these licenses. Finally, we should remember that these licensing deals, backed as they are by the threat of lawsuit, will be even harder to get out of, once a campus has signed up, than the big serials agreements have been. That fact, and its implications for budget planning, should give us pause as we consider how much security these blankets really offer.