Category Archives: Libraries

Should you #DeleteAcademiaEdu?

[ Note: Many readers of this blog have probably heard by now that Kevin Smith, who has been the primary author here, will soon be leaving Duke to be the Dean of Libraries at the University of Kansas. We do intend to keep the blog going, and to continue to address the same issues you’ve come to expect from the site, though with a greater variety of authors. So do stay tuned. This post is by Paolo Mangiafico.]

Yesterday afternoon a kerfuffle arose on Twitter about Academia.edu, a social networking site for academics, where many academic authors have profiles, share their publications, and connect with other scholars. You can read about the beginning of the controversy in this article the Chronicle of Higher Education posted this morning.

The ensuing tweetstorm followed a fairly typical trajectory – moral outrage, call to action, a hashtag, and then of course the inevitable backlash, with each side calling into question the integrity of each other’s motivations, or at least the consistency of their actions.

The chief concern, or at least the one that appears to have caused the most heated debate initially, was whether paying for promotion of one’s scholarly work was equivalent to “vanity publishing”, but the discussion evolved into the broader issue of whether the fact that Academia.edu is a commercial service meant academics should avoid it, with several people on Twitter calling that out as hypocrisy, given the many other commercial transactions that academic life is entangled with.

My own opinion is that this is a straw man argument, and it misses an opportunity to have a more nuanced discussion about what’s really at stake here. This isn’t a morality play, and it’s not about whether charging for “monetizing” something is in itself a bad thing – for me it’s about choices, and making informed choices about keeping or ceding control to one’s own work. It’s also about being open vs being closed. Despite the impression that #DeleteAcademiaEdu is just railing against capitalism, I’d argue that it’s really about promoting a more competitive marketplace, one where the data is open for any number of potential services (consortial, member-supported, or even commercial) to do interesting and useful things with it – may the best service win, or may many complementary services thrive.

The challenge with sites like Academia.edu is that this is not possible. By most accounts, Academia.edu is a fine service, and clearly it’s meeting a need, as the number of academics who have profiles in it shows. They are doing very well at motivating academics to put their profile data and publications there. But what happens to that information once it’s there? By my read of the site’s terms of service, no other uses can be made of what you’ve put there – it’s up to Academia.edu to decide what you can and can’t do with the information you’ve given them, and they’re not likely to make it easy for alternative methods of access (why would they?). There doesn’t appear to be a public API, and you need to be logged in to do most of the useful things on the site (even as a casual reader). They were among the first to create enough value for academics to encourage them to sign up, and kudos to them for that, but does that mean your profile data and publications should be exclusively available via their platform? This is what’s called “vendor lock-in” – it’s very good for the vendor, not so good for the users.

While it’s understandable that companies will try to recoup their investments through such approaches, it nonetheless goes against the ethos of academia, and of how the Internet functions best. A few years ago at a conference I heard a speaker say

On the Internet the opposite of ‘open’ is not ‘closed’ – the opposite of ‘open’ is ‘broken’

(If I remember correctly, it was John Wilbanks)

So yesterday when I first started reading some tweets about people deleting their Academia.edu accounts, I tweeted

VIVO is an open source, open access, community-based, member-supported profile system for academics. It has been implemented by many universities and research organizations, and makes linked open data available for access and integration across implementations. In some institutions, like my own, it is connected to our open access institutional repository, so Duke researchers can easily make the full text of their publications be linked directly from their profile – open to anyone, no login required, always in the author’s control. And the custodians of the system and the data are the researcher’s home institution, as well as…  well, here I’ll quote from an article Kevin and I wrote a couple of years ago:

“this brings us to a discussion of another major player in this ecosystem that we have not yet addressed—a set of organizations that are mission driven, rather than market driven; that are widely distributed and independently operated, and therefore less vulnerable to single points of failure, and that were designed to be stable over long periods of time; that are catholic in their scope, strong supporters of intellectual freedom, and opponents of censorship and other restrictions on access to knowledge; and that are in full alignment with the mission of learning, teaching, and research that constitutes the primary reason why authors write academic articles. We are, of course, talking about libraries.”

This, ultimately, is why I think scholars will be better served by having the core data for their profiles and their research tied to open systems like VIVO, and to their universities and their libraries. Sure, the interfaces might not be as elegant, and we might move more slowly than a commercial service, but we’re in it for the long haul, we share your values, and we’re not going to try to lock in your data.

If someone wants to harvest the data from VIVO and our repository and layer on a better social networking or indexing service, that’s great – the data is available for that, and we have an open API. Do you want to charge for the service? No problem, as long as the people you’re charging know that they’re paying for your service add-ons, and not the data itself, which remains open and free to anyone else to use it outside the paid service. Do you have a service (like Academia.edu) that’s really good at convincing authors to enter their CV and upload their articles? Wonderful – make the data available unencumbered, and we might be willing to pay you to do the collecting for us (especially since institutional repositories haven’t been as successful in doing so).

The key reasons why authors should choose first to work with their scholarly communities rather than purely commercial enterprises isn’t that making money is bad – we all have to earn a living – but that the goals and values aren’t necessarily in alignment. I’ve used a lot of words to say something that Katie Fortney and Justin Gonder said in December (in “A social networking site is not an open access repository”) and Kathleen Fitzpatrick said a few months before that (in “Academia, Not Edu”), but the Twitter discussion sparked yesterday has made many more people aware of this issue, so I wanted to underline these ideas, and say a bit more about it than would fit in my tweets yesterday afternoon.

You have a choice, and the choice I hope you will think more about is whether you feel more comfortable investing your time and efforts with your home institution and your library, whose incentives and values presumably align with your own, and who will contribute to an open ecosystem, or with a service whose incentives and values and life span are unknown, and whose business model relies on being closed. If you’re comfortable with the trade-offs and risks, and willing to exchange those for the service provided, then don’t #DeleteAcademiaEdu. But I hope you will use this opportunity to look into whether alternatives exist that will meet your needs while keeping your options open and your data open, and preserving your ability to keep control of your work and make sure it’s not helping sustain an ecosystem that’s broken.

——

If you’ve read this far, I hope you’ll also tolerate this shameless plug for an upcoming event that will be a forum for addressing many of the issues discussed above – the Scholarly Communication Institute. The theme of SCI 2016, to be held in Chapel Hill, NC, in October, is “Incentives, Economics, and Values: Changing the Political Economy of Scholarly Publishing.” We invite teams to submit proposals of projects they’d like to work on that fit this theme, and to build a dream team of participants they’d like to spend 4 days with working on it. For proposals that are selected, we pay expenses (thanks to a grant from the Andrew W. Mellon Foundation) for the team to come to the North Carolina Research Triangle and work on their project alongside several other similar teams, in an institute that’s part retreat, part seminar, part unconference, and part development sprint. You can find out more about the institute at trianglesci.orgproposals are due March 14, so if you’re interested, start putting together your team soon.

Copyright MOOCs, new and refreshed

When my colleagues Anne Gilliland and Lisa Macklin and I released our first Coursera MOOC about copyright, called Copyright for Educators and Librarians, we were very pleased with the reaction.  Although our enrollment for that first MOOC was, at just over 10,000 participants, rather low by MOOC standards, we had a higher than normal percentage of completions, and the feedback we got from colleagues was quite positive.

That course ran in the summer of 2014.  In July of 2015, we were able to release a new version of the same course in an on-demand format, meaning that participants are able to start the course whenever they wish and can proceed at their own pace without a proscribed ending point.

The move to on-demand is important because it brought us a bit closer to our overall goal, which has been to provide a form of copyright education that is accessible in the several sense of that word to all of our colleagues in education, especially.  The course is still free, although there is a small fee if the participants want to receive a “verified certificate” of completion.  We began this project aware that the Center for Intellectual Property at UMUC had recently closed, so the education community had lost access to their series of course offering on copyright that carried continuing education credit.  Our hope was to provide an opportunity to learn about copyright that was free to all, but also could be used, through the verified certificates, by those colleagues who want to learn about the subject AND get some form of (less expensive) credit for this professional development activity.

Now we have taken another big step toward that goal, with the release today of our second MOOC, on Copyright for Multimedia.  Like the first course, this MOOC is on-demand, free to take, and relatively short – four substantive modules and an introduction.  In this second course, the modules focus on four different media – data, images, music and film.  It grew out of our awareness how often the questions brought to us focus on different media.  Many of our colleagues seem confused about how copyright “rules” from the print world, apply in an environment rich with diverse forms of expression and communication.  This confusion is understandable, since copyright was born with print technology and continues to adapt only uncomfortably to these “new” media.

When we are asked about what “copyright for music,” or “copyright for film,” looks like, we try to emphasis that the one copyright law in the U.S. is intended to apply without regard to medium of expression.  Nevertheless, it is perfectly true that some provisions of the law are media-specific.  More significantly, the circumstances in which different media are used are often quite different from the more familiar facts surrounding the use and distribution of print.  There is an lawyer’s maxim that says, “change the facts and you change the outcome,” and that is never more true that when we are talking about different media.

Our new MOOC tries to address these differences, and also to further develop the framework for analyzing a copyright issue that we built in the first course.  Now that both MOOCs are available on the Coursera platform, we hope that they will be a continuing resource to improve copyright understanding for our colleagues.

I want to add a couple of personal notes to this announcement of the two-part series of MOOCs on copyright.

First, I want to say what a wonderful experience it has been to work with Lisa and Anne, who are as smart and creative about teaching as they are about copyright, as well as with the online course team at Duke.  I want especially to note my sense of awe at the creative, complex and realistic scenarios that Anne Gilliland can think up to tease out the implications of copyright in different situations; I hope our participants find them as thought-provoking and amusing as I do.

Second, because of the announcement issued today about my new position as Dean of Libraries at the University of Kansas, and thus my departure from Duke, it seems unlikely that I will participate in any more MOOCs in this series.  Our original plan was for three courses, but the two we now have stand alone and, we hope, also work together as a series.  It is now an open question whether there will be a third MOOC in this series, but the process of creating these two has been delightful, and the product, I profoundly hope, useful to our colleagues and to many others.

Rebels in the Campus Bookstore

A guest post by Will Cross, Director of Copyright and Digital Scholarship at North Carolina State University

As the semester winds down most normal people are sweating through final projects, scheduling visits with family and friends, or looking forward to a well-deserved holiday break by the fire (or at least the warming glow of the new Star Wars movie).  I can’t stop thinking about textbooks.

Several recent events have kept this topic on my mind.  First, Kevin and I are preparing to teach a class in the spring and we’re currently putting the finishing touches on our assigned readings.  Sitting at the breakfast table working through the syllabus, I was struck by a seemingly-unrelated comment from my wife, Kimberly, who is finishing her first semester in a doctoral program.  Making her own plans for the spring, she noted “I need to decide if I’m going to renew my statistics textbook.”

Readers who have been out of school for a few years might be surprised that many students like Kimberly rent, rather than purchase, their more expensive textbooks.  If textbook rental companies like Chegg and College Book Renter are not familiar names, you may also be surprised by how quickly textbook prices have spiraled out of control in the past decade.  Increasing at nearly triple the rate of inflation, textbook costs have outpaced rises in health care and housing prices, leaving students with an expected bill of more than $1,200 a year.

Faced with these unsustainable costs, students like Kimberly find themselves in an arms race, seeking alternative channels to acquire textbooks while publishers work to plug leaks in their captive marketplace.  Indeed, one of the largest copyright cases decided by the Supreme Court in recent years resulted from publishers’ attempt to create a “super-property” right in order to quash the sale of less expensive international textbooks.  The following year a casebook company attempted something similar using license provisions to strip property rights from students who “purchased” (ironically) their property law textbook.

While prices have gone up, student spending has not always followed suit, with many students renting, borrowing, or pirating textbooks.  Many more simply choose their courses and majors based on the costs of textbooks or delay their purchases to determine the extent to which a title is used in class, setting them back days or weeks in assigned readings.  Of greatest concern, a recent PIRG survey revealed that more than 65% of students simply muddle through with no textbook, even though the majority recognized that this presented a “significant concern” for their ability to successfully complete the course.  As a result, more than 10% of students fail a course each year because they simply cannot afford the book.

Textbook costs have priced many students out of equal participation in higher education and colleges and universities should regard this as social justice issue that threatens students’ academic progress.  Students have written powerfully about these issues on social media, using hashtags like #textbookbroke to document the burdens

created by high prices.  For example, tweets from Kansas’ #KUopentextbook project have documented the harm done by students’ lost opportunities to travel to conferences, take unpaid internships, and compete on equal footing in the classroom.  As one student put it, “my wage shouldn’t determine my GPA.”

Closed, commercial textbooks also do significant harm to instructional design and academic freedom, forcing instructors to use one-size-fits-all books rather than diverse, tailored course materials.  This issue received national attention in November when an instructor was formally reprimanded for refusing to assign a $180 algebra book written by the chair and vice chair of his department.  As SPARC’s Nicole Allen notes, the well-intentioned practice of assigning a single book for multiple sections was designed to support a strong local used-book market but in practice it often entrenches a system of static commercial works.  It can also homogenize educational materials, limiting them to publisher-approved narratives that inhibit an instructor’s ability to bring her own voice and experience into the classroom.  Indeed, many publishers include value-added materials like test banks and pre-made assignments designed to create textbooks that are fully “teacher-proof.”

Students are often caught in the crossfire of a broken textbook market where books are sold by a small group of for-profit publishers who control 80% of the market, and purchasing decisions are made by faculty instructors but students are asked to pick up the bill.  This situation – where for-profit publishers leverage faculty incentives to exploit a captive academic market – should sound familiar to anyone working to bring open access to scholarly publishing.  The scale, however, is quite different: the textbook market exceeds the scholarly journal market by roughly $4 billion each year.

As they have with open access, academic stakeholders have begun to rebel, designing open materials that are not just cheaper than closed works but are positively better.  These open educational resources (OER’s) may be peer-reviewed Creative Commons-licensed textbooks like those found in Rice University’s OpenStax program or the University of Minnesota-led Open Textbook Network. They also encompass modular learning objects like those found in the MERLOT repository or even full courses like those offered through MIT’s OpenCourseWareCommunity colleges and system-wide efforts like Affordable Learning Georgia have been particularly effective in this space, with programs like Tidewater’s “Z-Degree” that completely remove student textbook costs from the equation.

In the past several years, academic libraries have joined the fray, raising awareness, offering grants, and collaborating with faculty authors to create a diverse body of open educational resources.  In the NCSU Libraries, we have followed the outstanding examples of institutions like Temple and UMass-Amherst by offering grants for faculty members to replace closed, commercial works with open, pedagogically-transformative OERs.  These projects create massive efficiencies for libraries – spending a few thousand dollars to save students millions – and a growing body of empirical data indicates that student learning and retention are improved by open materials.

It’s no surprise that an open textbook would be more effective than one that a third of students can’t afford to buy.  The greatest potential for OERs, however, comes from the way they empower instructors and engage with library expertise.  The “teacher proof” books offered today frequently reduce instructors to hired hands, reciting homogenized narratives approved by for-profit publishers.  In contrast, as one recent study concluded, an OER “puts ownership of curriculum directly back into the hands of teachers, both encouraging them to reflect on how the materials might be redesigned and improved and empowering them to make these improvements directly.”  Combined with support from libraries for instructional design, copyright and licensing, and digital competencies, OERs have the potential to transform pedagogy at the deepest levels.

For today’s students, textbook prices mean more than just a few extra days of subsisting on ramen noodles.  Too often, students have to choose between adding another thousand dollars to an already historical debt load or trying to get by without essential resources and closed, and commercial textbooks often leave faculty instructors with no choice at all.   These, to borrow a phrase, aren’t the books we’re looking for.

Swatting three bugs at once

In was warm here in North Carolina over the Thanksgiving holiday, and, like many of our neighbors, we left our doors open during the day to enjoy the pleasant breeze.  The downside, however, was that while watching a football game on Sunday, I found myself swatting ineffectively at several small insects that found their way into the house in spite of our screens.  I was reminded of that experience today (the weather is sadly much cooler) when a question about ILL and DVDs was forwarded to me.  It seemed there were three different misapprehensions at work in the question, so I want to take this opportunity to swat these three “bugs” in one blog post (but I am absolutely am not comparing any of the folks who posed this question to insects; it is just that the misunderstandings of copyright law represented therein are “pesky”).  In addition to debunking these three worries, I also want to acknowledge two caveats that arose as I discussed this situation with some colleagues.

So here is the problem.  A librarian is searching for a DVD of a relatively obscure foreign-language film from 1938, and concludes that she cannot obtain a copy through ILL because the professor who is requesting the film plans to show it in her classroom.  The request went to a librarian list as a plea for help in finding a copy of the film to purchase because, the librarian had concluded, ILL was not an option.

As I say, I think there are three potential misapprehensions behind this conclusion that sometimes cause librarians to restrict their options for obtaining material out of a misplaced fear of copyright problems.

The first possible reason someone might be hesitant in this situation is the notion that audio/visual works cannot be loaned through ILL.  It is easy to see the source of this mistake, since various A/V materials are explicitly excluded from the two provisions in section 108 of the copyright law that authorize copying for ILL (subsections d and e).  But we must remember that those two subsections of section 108 are only about making copies for ILL; they have no impact on the issue of loaning originals.  So where an original of a DVD (that is, a lawfully-made copy that is made with the direct authorization of the rights holder) is requested, ILL is perfectly OK.

Now here is one of the caveats.  Many institutions decide not to loan audio/visual works because of work flow and availability issues.  They may fear damage that can occur during mailing.  Those are perfectly fine reasons to decline to loan a DVD, and the holding library is entitle to make such a decision.  Just because the law allows a practice does not mean any particular person or entity is required to do it.  But it is important to recognize that a decision not to loan A/V works through ILL is just that, a decision.  It is not based on a legal prohibition.

The next potential misconception here is that the doctrine of first sale, which is what really does underlie all lending of originals from a U.S. library, somehow does not apply to the particular DVD in question.  But first sale, found in section 109 of the copyright act, does allow the lending of any type of original of a copyright-protected work (with a narrow exception for computer software that is not relevant to this discussion).  Whether it is a copy of a book, a filmstrip, a music CD, or a DVD, first sale — which is an exception to the exclusive right over distribution — allows lending of the lawfully made original.  It does not matter if that loan is accomplished through ILL, or library reserve, or simply between two friends.  Nor does it matter, after the Supreme Court ruling in Kirtsaeng v. John Wiley, where the lawfully-made original came from; as long as it was original made with the consent of the rights holder (i.e. not a bootlegged copy) it can be loaned.

Here is a good place for my second caveat.  These rules from the copyright act about ILL, lending of originals and, in a moment, classroom showings, are default rules.  They are in place unless they have been changed by an agreement between individual parties.  Where there is such an agreement, it is the agreement that provides the rules and restrictions for those parties, while the default rules of the copyright law apply to everyone else and in regard to any other topic or material.  So if the specific DVD was obtained under a license that prohibited lending or ruled out classroom showings, that license should be obeyed.  Likewise if the film is part of a licensed database.  But most individual DVDs do not come with their own license.  Instead, they are purchased under the default rules for distribution, performance, and lending that I am describing here.

Which brings me to the last potential misunderstanding, that a borrowed DVD cannot be used for a classroom showing.  Classroom showing is allowed, as most academics know, as an exception to the exclusive right over public performance.  Actually, the exception is somewhat broader than in-class performance; it allows a public performance or display of a copyrighted work in any “face-to-face teach activity” that takes place in “a classroom or similar place devoted to instruction.”  So it is easy to imagine a film showing that would qualify, as part of an in-person teaching activity, even when not directly connected to a scheduled class or a regular course.  More importantly, for our issue, the copy used for such a showing need only be “lawfully-made,” the same requirement as for the application of first sale, described above.  There is nothing to prevent a classroom showing of a DVD that is borrowed from the library, from Redbox, from your neighbor, or through ILL.

This problem has given us a chance to examine three potential misunderstandings that can sometimes cause librarians to restrict their own activities unnecessarily, out of fear of copyright issues.  It is easy to see how such misconceptions arise, since the law is complicated on these points.  But, properly understood, the law often gives more leeway to libraries than we often realize.  It is nice to have the chance to dispel these myths.  Now if I could just get those bugs out of the house!

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.