Category Archives: Libraries

Libraries, Open Access and Institutional Repositories, Scholarly Publishing, Technologies

An odd anouncement

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I did not initially pay much attention when publisher John Wiley announced early in September that they would impose download limits on users of their database “effective immediately.”  My first thought was “if they are going to disable the database, I wonder how much the price will decrease.”  Then I smiled to myself, because this was a pure flight of fantasy.  Like other publishers before it, Wiley, out of fear and confusion about the Internet, will reduce the functionality of its database in order to stop “piracy,” but the changes will likely do nothing to actually address the piracy problem and will simply make the product less useful to legitimate customers.  But it is foolish to imagine that, by way of apology for this act, Wiley will reduce the price of the database.  As contracts for the database come up for renewal, in fact, I will bet that the usual 6-9% price increase will be demanded, in fact, and maybe even more.

As the discussion of this plan unfolded, I got more interested, mostly because Wiley was doing such a bad job of explaining it to customers.  More about that in a moment.  But first it is worth asking the serious question of whether or not the plan — a hard limit on downloads of 100 articles within a “rolling” 24 hour period — will actually impact researchers.  I suspect that it will, at least at institutions like mine with a significant number of doctoral students.  Students who do intensive research, including those writing doctoral dissertations as well as students or post-docs working in research labs, sometimes choose to “binge” on research, dedicating a day or more to gathering all of the relevant literature on a topic.  Sometimes this material will be download so that it can be reviewed for relevance to the project at hand, and a significant amount of it will be discarded after that review.  Nothing in this practice is a threat to Wiley’s “weaken[ed]” business, nor is it outside of the bounds of the expected use of research databases.  But Wiley has decided, unilaterally, to make such intensive research more difficult.  In my opinion, this is a significant loss of functionality in their product — it becomes less useful for our legitimate users — which is why I wondered about a decrease in the price.

The text of the announcement was strangely written, in my opinion.  For one thing, I immediately distrust something that begins “As you are aware,” since it usually means that someone is about to assert categorically something that is highly dubious, and they do not wish to have to defend that assertion.  So it is here, where we are told that we are aware of the growing threat to Wiley’s intellectual property by people seeking free access.  I am very much aware that Duke pays a lot for the access that our researchers have to the Wiley databases, so this growing threat is purely notional to me.  As is so common for the legacy content industries, their “solutions” to piracy are often directed at the wrong target.  So it is with this one.  As a commenter on the LibLicense list pointed out, Wiley should be addressing automated downloads done by bots, not the varied and quite human research techniques of its registered users.

Another oddity was the second paragraph of the original announcement, which seems to apologize for taking this action “on our own,” without support form the “industry groups” in which Wiley is, they say, a “key player.”  As a customer, I am not sure why I should care about whether the resource I have purchased is broken in concert with other vendors or just by one “key player.”  But the fact that Wiley thought it needed to add this apology may indicate that it is aware that it is following a practice that has been largely shown throughout the content industry to be ineffective against piracy and alienating to genuine customers.  Perhaps, to look on the bright side, it means that other academic article vendors will not follow Wiley’s lead on this.

Things got even stranger when Wiley issued a “clarification” that finally addressed, after a 10 day delay, a question posed almost as soon as the first announcement was made, which was about exactly who would be affected by the limitation.  That delay, in fact, made me wonder if Wiley had not actually fully decided on the nature of the limitation at the time of the first announcement, and waited until a decision was made, belatedly, to answer the question.  In any case, the answer was that the limitation would only be imposed on “registered users.”  That clarification said users who accessed the database through IP recognition or via a proxy would not be affected, and that these non-registered users made up over 95% of the database usage.  So as Wiley asserts that this change will make little difference, they also raise the question of why do it at all.  It seems counter-intuitive that registered users would raise the biggest threat of piracy, and no evidence of that is offered.  And I wonder (I really do not know) why some users register while most, apparently, do not.  If Wiley offers registration as an option, they must think it is beneficial.  But by the structure of this new limitation, they create a strong incentive for users not to register.  But then Wiley adds a threat — they will continue to look for other, presumably more potent, ways to prevent “systematic downloads.”  So our most intensive researchers are not out 0f the woods yet; Wiley may take further action to make the database even less usable.

All of this made me doubt that this change had really been carefully thought out.  And it also reminded me that the best weapon against unilateral decisions that harm scholarship and research is to stop giving away the IP created by our faculty members to vendors who deal with it in costly and irresponsible ways.  One of the most disturbing things about the original announcement is Wiley’s reference to “publishers’ IP.”  Wiley, of course, created almost none of the content they sell; they own that IP only because it has been transferred to them.  If we could put an end to that uneven and unnecessary giveaway, this constant game of paying more for less would have to stop. So I decided to write a message back to Wiley, modeled on their announcement and expressive of the sentiment behind the growing number of open access policies at colleges and universities.  Here is how it will begin:

As you are aware, the products of scholarship, created on our campuses and at our expense, are threatened by a growing number of deliberate attempts to restrict access only to those who pay exorbitant rates.  These actors weaken our ability to support the scholarly enterprise by insisting copyright be transferred to them so that they can lock up this valuable resource for their own profit, without returning any of that profit to the creators.  This takes place every day, in all parts of the world.

University-based scholarship is a key player in the push for economic growth and human progress.  While we strive to remain friendly to all channels for disseminating research, we have to take appropriate actions on our own to insure that our IP assets have the greatest possible impact.  Therefore, effective immediately, we will limit the rights that we are willing to transfer to you in the scholarly products produced on our campuses.

 

 



 




 

	

	
	




	
	

				

			Copyright Issues and Legislation, Fair Use, Libraries, Scholarly Publishing
		

			
Feelin’ stronger every day

		

			 		

	


		

		
I don’t mean this to sound vindictive or smug, but the publisher John Wiley keeps filing, and losing, lawsuits intended to enforce ever-stronger copyright claims, that, in the outcome, can only be encouraging to those of us who seek a more balanced law that both protects copyright holders and supports reuse rights.


Wiley was the plaintiff is the case recently decided by the U.S. Supreme Court that held that the doctrine of first sale applied, in the U.S., to any lawfully made work, regardless of the place of manufacture.  Wiley, of course, wanted the Court to limit first sale to works manufactured in the U.S. so it could choke off second-hand sales, at least for textbooks, but instead clarified the law in exactly the opposite direction. And then, in another set of cases, Wiley, joined by the American Institute of Physics, filed three different lawsuits, in different jurisdictions, alleging that law firms that filed copies of scholarly articles as disclosures of “prior art” with patent applications were infringing copyright if they did not pay for licenses for each article.   The two losses they have recorded thus far in those cases are more evidence of the robust notion of fair use our courts are developing for the digital age.


In one of those lost cases, in Northern District of Texas, the judge dismissed the case on summary judgment back in May, holding that fair use protected the challenged copying and distribution.  But that decision was announced from the bench, and as far as I know we do not have a written opinion yet that we can parse to see how it might apply in other situations.


Late last month, however, the other court in which such a lawsuit was filed did issue an opinion.  Actually, a magistrate judge assigned to consider the case by the federal district court in Minnesota issued a “report and recommendation” that strongly supports fair use for the situation in question.  It also offers an analysis that could easily provide an analogy to activities in higher education, including the e-reserves system that is being challenged in the Georgia State University lawsuit.


It is worth spending some time looking at the report and recommendation of the Minnesota magistrate.  His basic recommendation is that the suit be dismissed on summary judgment because the challenged use of copyrighted articles is fair use.  Apparently because of the North Texas case, Wiley had pared back its claims, allowing that the actual filing of articles with a patent application, and a single copy retained by the law firm in its case file, was fair use.  But if Wiley thought that this common sense concession would allow it to force firms that did more, such as maintaining a database of articles for its attorneys or sending copies of articles to clients, to pay licensing fees, it was badly mistaken.  The Magistrate Judge’s recommendation is a sweeping assertion of fair use, and there are four aspects of his analysis that I want to highlight.


First, and perhaps most importantly, Judge Keyes asserts that the use made by Schwegman, Lundberg & Woessner, the law firm that was sued, is transformative.  He finds transformation in the use of the articles in question for a different “intrinsic purpose” than that for which they were published:


This conclusion does not change merely because the “copying” Schwegman engaged in did not alter the content of the Articles.  That lack of alteration may make the label “transformative use” a messy fit… But reproduction of an original without any change can still qualify as fair use when the use’s purpose and character differs from the object of the original, such as photocopying for use in a classroom.


In reaching this decision that Schwegman’s purpose in using these articles, which was to comply with government requirements, to compare the invention to “prior art,” and to represent its’ clients interests, “did not supersede the intrinsic purpose of the original,” the Judge also stated a case for why the copying at issue in the Georgia State e-reserves case can similarly be viewed as transformative.  Indeed, he made that point explicit, since teaching is a different “intrinsic purpose” than that for which they were written and published, which the judge said was to inform the scientific community of new research  and allow for the testing of methods and conclusions.


Next, the Magistrate Judge directly refuted the claim by the two publishers that the Texaco case, which refused to allow fair use for copying within the research arm of a commercial company, should also be applied to reject fair use for this law firm (which is, of course, a commercial entity).  Here again the Judge made a careful distinction between the purpose that was rejected in Texaco and the purpose for which Schwegman was making its copies:


Here, there is no evidence that would allow a reasonable jury to conclude that Schwegman is similarly [to Texaco] maintaining mini-research libraries so that it can avoid paying for separate licenses for each of its lawyers, thereby superseding the original purpose of the Articles… the evidentiary character of Schwegman’s copying differentiates the firm’s use of the Articles from the Articles’ original purpose.


At this point as well as others, this recommendation undermines a central claim of the publishers in the Georgia State case.  Just because a licensing market exists, and the use to which the excerpts from published works are put therefore saves the users some money, that does not undermine fair use, Judge Keyes tells us, when the purpose of the use is intrinsically different from the original purpose.  If the Eleventh Circuit Court of Appeals applies this type of reasoning in the GSU appeal, we could see an even broader fair use ruling in Georgia State’s favor than we got from the District Court.  No guarantees, of course, that the Eleventh Circuit will take this approach, but this analysis in the Schwegman case is one more support for that possibility.


Several times in his report, Judge Keyes points out that the loss of licensing fees would have no impact at all on the incentives that scholarly authors have to write the articles that are at issue in the case.  This incentive-based approach is the right one to take, in my opinion, since it looks at exactly the question copyright law should be focused on — what is needed to ensure the optimal level of ongoing creation and innovation.  Since scholars do not get paid for their scholarly articles, and any small amounts that may trickle down to them from licensing fees are irrelevant to the decision to report on their work, the Judge says that the fact that “the Publishers may have lost licensing revenue from Schwegman’s copying is not determinative and does not create a fact issue for trial.” I have italicized the last part of this sentence to emphasize that Judge Keyes does not think this is a hard case or a compelling argument, since the standard he is applying, in recommending summary judgment, is whether any reasonable jury could find otherwise.  He believes they could not, given the facts that surround scholarly communications today.


Finally, there is a fascinating part of this recommendation that points out, I think, what good citizens libraries really are in the copyright realm.  The law firm, you see, could not account for where it obtained the original copy of some of these articles, so the publishers argued that this lack of an authorized or licensed original should defeat fair use, alleging “bad faith” and citing the Harper & Row case.  But without evidence of actual piracy, the Judge rejects this claim and holds that no reasonable jury could find that there was bad faith by Schwegman that would prevent a holding of fair use.  I find this important because most academic libraries either do own purchased copies of the books they excerpt for e-reserves or make every attempt to obtain them if a request is made for a book the library does not already own. I am frequently asked by librarians how hard they should search for a copy to purchase.  I believe this is a good practice, for both copyright and pedagogical reasons, but the Schwegman case is a reminder that by doing this we may be going beyond the absolute requirements of a fair use argument.  The fact is that, in spite of some over-heated rhetoric from the publishing industry (a former president of the AAP once called all librarians pirates), libraries try hard to be good citizen and to respect the appropriate boundaries of copyright.  What is causing problems these days is the publishers’ deep fear of the digital environment and their efforts, in response to that fear, to push the boundaries of copyright further and further, even to the point that its justifying purpose of supporting authorship and innovation is undermined.


The Schwegman report is just that, a report and recommendation.  It remains to be seen if the District Court judge responsible for the case will adopt it or not.  But the fact that it is out there, and is so supportive of a fair use argument that would allow and endorse library practices that the publishing industry has challenged, is another data point for our consideration.  It serves as a reminder that the key to finding favor in the fair use analysis is to be doing something the court believes is important and beneficial.  When we make limited copies to teach our students and support our researchers, we are on the side of the angels, and we continue to get these examples that must, over time, accumulate into a body of support for library practices.  It is the publishers like Wiley, who are in the position of asking courts to stretch copyright law solely to support new income streams, that are and will continue to be, in spite of their offensive strategies, always on the defensive.

	

	
	




	
	

				

			Libraries, Scholarly Publishing, Technologies
		

			
More on the AHA, ETDs and Libraries

		

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I wanted to be done with the American Historical Association and their muddle-headed statement about embargoing theses and dissertations for up to six years from open access in order to protect publishing opportunities.  I had hoped that the statement would receive the scorn that it deserves and we could all move on to discussing more serious matters.  And it has received a good deal of that well-deserved incredulity and disparagement, but there is still a bit of a debate going on — evidenced by this story in the New York Times — so I want to make a couple of additional points.


First, there is an article in Inside Higher Ed about the debate that does a pretty good job of summarizing the discussion, although it still treats the AHA’s statement with more seriousness than it deserves, in my opinion.  But one really telling tidbit from that article is the comment by the director of the Association of American University Presses that its members, whose wishes are supposedly being catered to by the AHA, were surprised by the statement.  Apparently he called over a dozen press directors after the statement was issued and found that none of them shared the concern that the AHA is so afraid of.  So one wonders, as I did in my last post, where the evidence is for the claim the AHA is making that ETDs imperil publication.


The AHA attempts to address this very question in an FAQ that was released shortly after the statement.  There, AHA Vice-President Jacqueline Jones directly pooses the issue of evidence, and answers like this:


This statement is based on direct communications between some AHA members and the acquisitions editors of several presses. In those communications, certain editors expressed the strong conviction that junior scholars placed their chances for a publishing contract at risk if their dissertations had been posted online for any length of time.


“Several presses” and “certain editors.”  This reliance on vague rumors seem to contradict what the AAUP director says that he found by calling his colleagues.  How are we to decide who is right with such unsupported statements?  Does this reflect the standard of evidence that is acceptable to historians? Even worse is the fact that in the same answer, Ms. Jones disputes the much more quantified study recently published in College and Research Libraries, which also contradicts the AHA, by asserting that only a small number of presses said revised dissertations were “always welcome” while a much larger number said that such submissions were evaluated on a case-by-case basis.  Ms. Jones suggests that the article authors take too much comfort in this portion of the responses they received to their survey.  But this misunderstands what is being said; all publishers evaluate all submissions on a case-by-case basis.  This is good news; it means your work will be considered (and, therefore, that the ETD was not a problem).  What, after all, is the alternative?  Even “always welcome” does not mean that all submitted dissertations will be guaranteed publication.  Does the AHA hope to return to a dimly-remembered time when all dissertations from elite universities, at least, were published without question and without revision?  If so, their rose-tinted nostalgia has lapsed into delusion, and the result is bad advice for graduate students.  If, based on this commitment to a past that never existed, a student decides to avoid an online presence for her work for five or six years, her career will be destroyed in this age where if you cannot be found online you might as well not exist.


Throughout this debate, lots of folks are making assertions about libraries that display a lack of awareness of how those institutions work.  Over and over again we hear that this fear of an online presence is because libraries will not buy monographs that are based on a revised dissertation if the unrevised version is available online.  And no matter how often librarians remind folks that this is not true, it keeps resurfacing.  Let me try again.  In 25 years as an academic librarian, I have never met a librarian who looks for an online version of a dissertation before buying the published, and presumably heavily revised, monograph based on that dissertation.  That is just not part of the process; most acquisitions librarians do not even know if there is an online version of the dissertation when they decide about purchasing the monograph; I certainly did not when I made these sorts of decisions. Libraries look for well-reviewed items that fit the curricular needs of their campus.  They may ask if the book is over-priced and/or too narrowly focused, and those questions may rule out many revised dissertations these days.  But they simply do not, based on my experience and discussions with many of my colleagues (more anecdotal evidence!), look to see if they can get an unrevised version for free.  Perhaps librarians trust publishers to have guided the revision process well, creating thereby a better book, while the AHA does not seem to value that process.


Occasionally in this discussion we have seen publishers assert the same fiction about library acquisitions, sometimes dressed in more sophisticated form.  They say that it is true that individual librarians do not make decisions based on OA ETDs, but that vendors like Yankee Book Peddler allow approval plan profiles to be designed so that revised dissertations are never considered.  This is true, but it does not prove what it is asserted to prove.  Many academic libraries, especially at smaller institutions that do not have a mandate to build a research collection, will exclude books based on revised dissertations from their approval plan because such books are likely to be very expensive and very narrowly focused.  Many libraries simply cannot put their limited funds toward highly-specialized monographs that will not broadly support a teaching-focused mission.  To try to use this situation to frighten people about open access is disingenuous and distracts us from the real economic tensions that are undermining the scholarly communications systems.


Finally, we should remember that dissertations have been available in pre-publication formats for a very long time.  The AHA statement talks about bound volumes and inter-library loan, but that is either extreme nostalgia or willful ignorance.  UMI/ProQuest  has offered dissertations for sale since the 1970s, and has sold those works in online form for years before ETDs began to pick up momentum.  And ETDs are not so new; early adopters began making electronic dissertations available a decade ago.  Duke’s own ETD program began in 2006, and we worked from the example of several predecessors. So why did the AHA wait until 2013 to issue its warning? Perhaps they took their own bad advice and nurtured their opinion until it suffered the same fate they are now urging on graduate students — irrelevance.

	

	
	




	
	

				

			Libraries, Open Access and Institutional Repositories, Scholarly Publishing
		

			
ETDs, publishing & policy based on fear

		

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The July 2013 issue of College & Research Libraries contains an important article on the question “Do Open Access Electronic Theses and Dissertations Diminish Publishing Opportunities in the Social Science and Humanities?”  The article reports on a 2011 survey of publishers, which follows up and refines several previous surveys done to see if publishers really do decline to publish revised dissertations when the original work is available in an open access repository.  All of these surveys found the same thing — a large majority of publishers DO NOT treat the existence of an open access ETD as prior publication that disqualifies the revised version from publication.  In fact, while early studies asked the question of whether or not ETDs were considered prior publication and found that about 15-25% said they did, when the 2013 authors phrased the question differently — how do you approach revised versions of manuscripts derived from OA ETDs — the percentage of publishers who said they would not consider those manuscripts was even lower, consistently less than 10%.


By far the majority of journal and university press publishers told the authors that such manuscripts were either always welcome or considered on a case-by-case basis.  It is naturally true that dissertations have to be significantly revised prior to publication, but that is the case regardless of whether or not the dissertation is online.  Consider these two quotations from survey respondents, one from a university press and one from a scholarly journal:




We normally consider theses or dissertations for publication only if the author is willing to significantly revise them for a broader audience; this is our practice regardless of the availability of an ETD.






Readers will consider our article to be the version of record, the version they should read and cite, because (a) it will have been vetted by out double-blind peer review process, (b) it will have been professionally edited, and (c) it will be the most up-to-date version of the material




This does not sound like publishers who are afraid of ETDs.  Indeed, even the very low numbers about publisher reluctance may need to be set in further context, since I think they still over-estimate the degree to which open access is the root cause of whatever difficulties there may be in getting a revised dissertation published.  More about that in a bit.


But first we need to address this farcical statement from the American Historical Association asking institutions that adopted ETDs to provide embargoes on OA of up to six years.  The AHA says it is afraid that ETDs may inhibit opportunities for students to publish their dissertations; they specifically claim that “an increasing number of university presses are reluctant to offer a publishing contract to newly minted PhDs whose dissertations have been freely available via online sources.”  But they offer no evidence for this claim, and the evidence that is out there, including this most recent survey, directly contradicts the assertion.  This is not the way a society of professional scholars should work; policy should be based on data, not merely fear and rumor.  And factual claims should be sourced.  Every scholar knows this, of course, but the AHA asserts an “increasing number” without citing any source, possibly because the available sources simply do not support the claim.  It is ironic that the AHA, in a statement purporting to defend the interests of graduate students, models such bad scholarly practice for those very students.


Speaking of inaccurate assertions, there is one quoted in the C&RL article from Texas A&M Press Director Charles Backus that needs to be addressed.  Mr. Backus is quoted as saying that his press is in that small minority that is more reluctant to consider a revised ETD “because most libraries and library vendors will not buy or recommend purchase of ensuing books that are based substantially on them.”  The authors of the article, themselves librarians, express surprise at this claim, and indicate that it needs further study.  They want to know how widespread this belief is in the publishing community, but we should also be doing research into whether or not the assertion has any foundation in fact.  Based on my experience, I do not believe that library selectors look at availability of an ETD when deciding whether or not to buy a monograph that is a revised dissertation; in fact, I doubt they usually know whether or not there even is such an ETD.  One librarian told me that she looked for “quality, coverage, currency and authority” when buying monographs and the claim that she might not buy a book because an earlier version was available as an ETD was “poppycock.”


If sales of monographs based on dissertations have declined, and I am prepared to believe that is the case, the reasons should be sought elsewhere than with ETDs.  This is really the other side of the publishers insistence that a dissertation must be substantially revised before it can be considered for publication.  Just as presses need to appeal to a broader audience to support sufficient sales, so libraries are looking at books with broad relevance to the curriculum they support when they allocate their shrinking monographs budget (that is the “coverage” criteria).  Even revised dissertations may be too focused on a specific niche, so they are quite likely to be the first things that get passed over.  But it is not open access that is the problem; the problem is that we have less and less money to spend on books because an ever-increasing share of our collection budgets is going to journal packages.  Your lunch, Mr. Backus, is being eaten by Elsevier and Wiley, not by ETDs.


Speaking of coverage and broad appeal gets me back to my suspicion that even the low numbers reported in this survey might over-report the degree to which ETDs inhibit publishing.  The question that was posed in the survey reported in C&RL was specifically about attitudes toward manuscripts that are revised ETDs.  But a larger question should be asked — are publishers accepting fewer revised dissertations overall, regardless of whether or not the original document is online.  I suspect the answer is that they are accepting fewer dissertations overall, and that is the context in which we should place any discussion about fear of ETDs.  In my own conversations with university presses, two criteria seem most important for them when deciding about any book manuscript — it must have “crossover” appeal, meaning that folks outside academia might want to buy it, and/or it must be suited for course adoption.  For many small academic presses, I think, the days of the purely academic monograph that will be read only be specialists are largely over, and they are over because of economic realities (like shrinking library budgets for books) that are independent of the movement toward ETDs.  It is this much more general set of conditions that spells bad news for revised dissertations.


Out of all of this, I hope for three next steps.  First, I hope that the next survey about ETDs will look at how librarians are actually making purchasing decisions, and thus rid us of the claim that libraries are reducing monograph purchases based on the availability of ETDs.  Second, broader research about the number of book manuscripts being accepted by academic press and the criteria that guide those decisions should be undertaken.  And finally, I hope that the AHA will look at this issue more responsibly and issue a statement that is guided by real evidence rather than by fear and nostalgia.

	

	
	




	
	

				

			Libraries, Scholarly Publishing
		

			
Small steps

		

			 		

	


		

		
Court cases rarely result in sweeping victories for anyone.  The Kirtsaeng case decided earlier this year by the Supreme Court was an anomaly in this regard; the court held that the doctrine of first sale applied in the United States to any lawfully-made copy of copyrighted material, regardless of where it was manufactured.  Although no library was a party to the lawsuit, that was a complete victory for libraries, as well as for Mr. Kirtsaeng.  But as I say, that is unusual.  Most of the time, court decisions do not completely satisfy either side, nor do they represent complete vindication for any one set of interests.  And if this is true about final decisions, it is even more the case when the ruling is about only one aspect of an ongoing case.


All of this is by way of saying that we should not read too much into some recent decisions, even though both contain small nuggets of encouragement for libraries.


I already wrote about the decision to reverse class certification in the Google Books lawsuit brought by the Authors Guild.  There is another perspective on that decision here.  But that case is a good example of what I mean.  It is encouraging that the class certification was reversed, provisionally, since so many academic authors are not represented by the position taken by the Authors Guild, and it is great to have the trial court instructed to consider fair use prior to deciding about the class action status of the case.  But there is still a long way to go in that case; Judge Chin has just scheduled the briefings and oral arguments for the next stage.  We cannot yet say for sure that Google Books is or is not a fair use, and even after a final ruling there will probably continue to be disagreement and room for dispute.


It is in this context that we should look at the ruling from the Southern District of New York in the Justice Department’s lawsuit against Apple over e-book pricing.


This was not merely a procedural ruling, to be sure.  It is the final decision of the trial court, which held that Apple and the major e-book publishers conspired to set prices above the standard that had been set by Amazon’s dominance of $9.99 per title.  The judge expressed no doubt that there had been a “combination in restraint of trade” that violated the anti-trust laws of the United States.


It is important to note that this finding involves both Apple and the five major e-book publishers.  Even though all of the publishers settled out of the lawsuit, their behavior is very much at issue.  Consider this quote, in which “plaintiffs refers to the U.D. Department of Justice, the State of Texas and others (the full opinion is here):


The Plaintiffs have shown that the Publisher Defendants conspired with each other to eliminate retail price competition in order to raise e-book prices, and that Apple played a central role in facilitating and executing that conspiracy. Without Apple’s orchestration of this conspiracy, it would not have succeeded as it did in the Spring of 2010.


In a similar vein, the Judge is very clear that neither the Apple executive nor the publisher CEOs who testified were credible to the court.


Obviously this lawsuit, which will certainly be appealed by Apple, has some implications for libraries in their ongoing quest for reasonable and workable terms for e-book acquisitions.  Perhaps the Judge’s orders in the case can help level that playing field a little bit.  But the case is not really about libraries, and we should not draw sweeping conclusions or direct analogies from it.  I want to suggest three general lessons for the rest of us to take from this case.


First, the digital environment is still new and frightening to many in the publishing industry.  They are trying to find ways to control the Internet and to make all the money they think it promises to them, but they are falling behind the curve.  Libraries, especially, need to take what they are told by publishers with several grains of salt and keep open all of our options for the digital life of scholarship.  The publishing industry worked very well for libraries and scholarship in the print era, but now as that industry alternates between wooing and threatening us, we need to acknowledge that, in these changed conditions, they may simply no longer be reliable or trustworthy partners.


Second, for anti-trust laws to be violated, some kind of collusion or conspiracy has to exist.  Simply charging an outlandish price is not an anti-trust violation.  Nor is simply refusing to pay an outlandish price.  Where there are problems is where there are organized boycotts by consumers to try to force prices down and where there are agreements amongst competitors to try and force them up.  An individual library is free to walk away from some of the most one-sided deals it is offered, and even to tell others that it did so and why. And even groups are free to boycott when the issues on which they want to put pressure are not price related, as in the Cost of Knowledge boycott of Elsevier, which focused on the fair treatment of authors.


For anti-trust liability to attach, there must be collusion focused on preventing free market competition between those who can marshal power in that market.  The conspiracy can be covert and secretive — there does not have to be a “smoking gun” — but it must exist.  In this e-books case the judge had no troubling documenting such a conspiracy.  But the basic parameters required for that element of an anti-trust violation can help us in libraries determine the things we can do to bring pressure on publishers that would not rise to the level of such “combination in restraint of trade.”


Third, anti-trust laws cut both ways.  In libraries we are often concerned that we need to avoid liability for collusion that might restrain free trade.  But this must also be a concern for publishers, as the Apple case shows.  Many issues that libraries face, including bundling of journals and e-b0oks, could create anti-trust liability for the vendors as well.  It all depends on whether or not there is a conspiracy or the exercise of excessive market power.  So libraries should be vigilant, both about their own actions and about the way they are treated as consumers; we should avoid collaborations designed to reduce prices, but also be willing to challenge price-fixing.


 


 


 


 

	

	
	




	
	

				

			Libraries, Open Access and Institutional Repositories, Scholarly Publishing
		

			
Better than joining the CHORUS

		

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Last week we saw two proposals about how the various federal agencies that fund research might implement the recent directive from the White House Office of Science and Technology Policy that mandates public access to the products of funded research.  A group of publishers unveiled (sort of) a proposal they call CHORUS, while the Association of American Universities, the Association of Research Libraries and the Association of Public and Land-grant Universities collaborated on a different proposal, referred to as SHARE.


The publishers proposal — the acronym stands for Clearing House for the Open Research of the United States — is described in glowing terms on the Scholarly Kitchen website and with a bit more restraint by the Chronicle of Higher Education.  The proposal from the education associations, dubbed Shared Access Research Ecosystem, is also described by the Chronicle and is the subject of a detailed draft proposal that can be found here.


For myself, I would rather SHARE than join the CHORUS, for a number of reasons.


First, I think CHORUS is being touted, at least in what I have read, by comparing it to a straw man.  Its principle virtue seems to be that it would not cost the government as much as setting up lots of government-run repositories, clones of PubMed Central.  But it is not clear that that option is being seriously suggested by anyone.  Certainly many of us encouraged the agencies to look at the benefits of PMC for inspiration and not sacrifice those benefits in their own plans, but that does not mean that each agency must “reinvent the wheel,” no matter how successful that wheel has been.  So the principle virtue of CHORUS seems to be that it does not do what no one is suggesting be done.


The most important thing to understand about CHORUS is that it is a dark archive.  The research papers in CHORUS would not be directly accessible to anyone; they would be “illuminated” only if a “trigger event” occurred.  Routine access would, instead, be provided on the proprietary platforms of each publisher, while the CHORUS site would simply collect metadata about the openly-accessible articles and point researchers to the specific publisher platforms.


It seems to me that the CHORUS proposal is “disabled” from the start, by which I mean that it lacks three fundamental abilities.  CHORUS, at least based on the descriptions we have seen, lacks find-ability, useability and interoperability.


Perhaps the most troubling remark in the description offered on the Scholarly Kitchen blog is that “Users can search and discover papers directly from CHORUS.gov or via any integrated agency site.”  Does this mean that even the collected metadata would not be available to Google?  We know how few researchers “walk through the front door” of our research tools, so limiting discovery to the CHORUS portal or “integrated agency sites” would make these open access papers virtually invisible (which, one suspects, is the point).  As things stand now, open access papers which reside on proprietary publisher platforms are difficult to find because there is no consistency in how they can be discovered.  That is the principal reason so many COPE fund institutions will not support so-called “hybrid” open access publishing that makes a few articles open on an otherwise toll-access site.  It does not seem that CHORUS would change that unfortunate situation at all, which is probably why Heather Joseph of SPARC calls CHORUS “a restatement of the status quo.”  The public would gain very little, since the major goal of the proposal is for the publishers to cling tightly to control over the research papers that have been entrusted with.


Another ability that CHORUS would lack is useability, since as far as we know, all that a researcher or other user could do with these papers is read them.  It would not, of course, facilitate sharing, teaching or reuse, even those these abilities are vital to improving the speed and quality of research in the United States.  And then there is interoperability.  If the geographically desperate archives are genuinely federated, searches across all of them, even keyword searches that are not dependent on the metadata created for each article, would be possible.  So would text and data mining across a large corpus of works.  We already know that such interoperability creates tremendous new opportunities for expanded research, collaboration, and previously impossible discoveries.  But there is no reason to believe that CHORUS would support interoperability, since the various publishers have a strong competitive interest in not allowing cross-platform activities.  Research and education, however, not only do not benefit from that competition, but are actively “disabled” by it.


On the other hand, the proposal from the universities and their libraries is for a genuinely federated system of university-based repositories.  Those repositories already exist, so if we are going to make a cost argument, it really favors SHARE.  And these repositories, unlike the publisher platforms, have a strong interest in facilitating discovery.  Also, the detailed proposal offered by these groups addresses text and data mining, semantic data, APIs for research and linked data.  All of these things make university-based research better, while they pose threats to the commercial publishers who have designed CHORUS to protect themselves, not to benefit research or the public.  So all the incentives line up between the public interest and the university-based SHARE system.


If the OSTP and the research-funding agencies take seriously all of the opportunities that were described in the comments they have solicited over the past year, it will be very obvious to them that CHORUS is singing flat, while it would be good to SHARE, just as our parents always told us.

	

	
	




	
	

				

			Copyright Issues and Legislation, Fair Use, Libraries
		

			
Time for breakfast at the 11th Circuit

		

			 		

	


		

		
In Alice in Wonderland, the White Queen chides Alice about her professed inability to believe unbelievable things, suggesting that it is just a matter of practice.  Because of her own discipline in practicing this art, the Queen is able to assure Alice that “sometimes I’ve believed as many as six impossible things before breakfast.”  Lawyers, of course, have to be skilled at making arguments even for implausible positions, but the reply brief filed in the GSU copyright infringement appeal last Monday would challenge even the White Queen’s gullibility.


In this brief the plaintiff publishers are attempting to respond to the arguments made in the last round of filings by Defendant Georgia State University and the “friends of the court” who argued on its behalf.  This is essentially their last shot at convincing the judges that they should reverse the decision of the trial court that largely ruled in favor of fair use.  Unfortunately for the publishers, it is not very convincing.


The core argument of this brief is one the publishers have been making, unsuccessfully, throughout the case — that the so-called “course pack” cases from two decades ago are absolutely dispositive in this case and render incorrect all of the fair use analysis done by Judge Evans in her comprehensive ruling at trial.  Some of this argument is based on misdirection, wherein the publishers argue that the judge was treating digital formats differently from print.  She did no such thing, of course; she distinguished the situation before her from the course pack cases because the facts were different.


The publisher  do address the distinction more directly, however, when they argue that GSU’s non-profit status is (for obscure reasons) not relevant to the fair use analysis.  Of course, the course pack cases explicitly rejected  fair use precisely because the defendants were commercial entities who were selling the course packs to students.  In the GSU case, on the other hand, the university is non-profit and the readings are made available at no charge.  It is absurd to say that this difference doesn’t matter.  In fact, at least one publisher I have dealt with granted gratis permission for an excerpt on e-reserves only after I assured them that no charge was made to students.  So even publishers understood that this was a crucial fact in determining the appropriateness of unlicensed uses in academia, before their lawyers told them they had better deny it.


From this basic assertion that the matter was already settled by different courts back in the 90’s, the publishers proceed to explain that the trial court was wrong on every one of the four fair use factors.  Much of the argument is very strange, twisting back on itself in an effort to obscure the clear and cogent path that Judge Evans used to arrive at her original ruling.  Its overall effect, however, is to emphasize what a sensible, careful analysis that trial court opinion offers.


It is, perhaps, worth looking at some of the general statements made in the opening summary of the brief’s argument to find some clues about how this analysis went so badly wrong.


First, of course, is this assertion that fair use is not supposed to favor non-profit educational uses.  We have heard this complaint many times over the long course of this cases, but here is last week’s version of it:


To sanction GSU’s practices under the rubric of fair use on the grounds urged by Appellees — GSU’s non-profit status and the importance of Appellants’ work as teaching tools — would undermine fundamental tenets of copyright law by effectively dedicating the works of scholarly publishers to the public domain. (emphasis added)


This is truly a staggering bit of argumentation.  First, a non-profit purpose is specifically mentioned as favoring fair use in the text of section 107 itself, so it is hard to see how it could NOT be an appropriate part of a fair use argument.  And a quick look at all of the exemplary purposes for fair use that are also mentioned in section 107 should convince any unbiased reader that social utility — the importance of education, for example — is the fundamental purpose for which fair use was created.  Indeed, courts have told us this over and over.  So the rubric suggested as inadequate is, in fact, a nice, concise statement of why the original ruling in this case was correct.  And then, the grotesque hyperbole that follows illustrates for us that the lawyers writing this brief know how far out on a limb they have climbed.  To say that a fair use finding effectively dedicates a work to the public domain is simply absurd.  I do not think the publishers could cite a single instance where fair use has had that effect, where the original became unmarketable because someone made a fair use of a portion of that work. When movie companies challenged the video recorder, for example, by saying that it would destroy the movie industry, they were making a parallel, and equally silly, claim; home video recorders, of course, did not harm the market for movies at all, even though entire films could be recorded under the Supreme Courts ruling on fair use.


And of course, we should not ignore that phrase “the works of scholarly publishers.”  Throughout this brief the publishers are not sure whether they are arguing for their own profits or on behalf of authors.  Sometime they throw the authors in to their argument, but mostly they want the court to believe that they, the publishers, actually created the works in question ex nihilo.  But none of these works were created by publishers, and their argument collapses when we realize that the fees they are seeking have virtually no role at all in incentivizing scholarly creation, which is what copyright is for. More about this in a minute.


But before we leave fair use proper, we should also examine this gem: “Fair use … imposes on the proponent of fair use the burden of demonstrating the limited nature of the unauthorized use …”  There is no such requirement in the text of the law, of course, and the Sony case about VCRs illustrates, at the highest level of U.S. legal precedent, that simply because a practice is widespread does not prevent it from being a fair use.


To return to the issue of incentives, let’s look at one more passage from the preliminary statement in this brief:


This blatant end-run of copyright law not only threatens to undermine the established legal norms that have long governed course-pack copying, but it comes at a time when Appellants and other academic publishers are investing heavily in publishing and delivering content in digital form.  These publishers cannot hope to recoup their investment if institutions like GSU are permitted to make exact digital copies of their works … without compensation to the works’ authors and publishers.


The first part of this quote is, as we have already seen, irrelevant; a fair use ruling in the GSU case would not alter the precedent created by the course pack cases, when those cases are properly understood.  But the second part is also interesting, and it echos an earlier statement, quoted from one of those course pack cases, about how publishers have “risked their capital to achieve dissemination.”  By way of reply, we should note first that dissemination is quite different now than it was nearly twenty years ago when that case was decided.  Many  Gold OA journals and other forms of digital writing can be distributed with much less expense than these traditional publishing houses claim is required.  So we are entitled to ask if it is being done efficiently by them; whether that capital the Court is asked to protect is being invested wisely.  And in any case, copyright law is not designed to support any particular business model, but to give creators more reason to create.


Given these statements, the Appeals Court would be justified, I think, in asking the plaintiffs to open the books and show how much investment is being made, how it is being spent, and how dependent that investment really is on permission fees.  The trial judge did not think those fees mattered all that much to publisher revenue.  If the plaintiffs continue to assert that their business will be ruined by fair use, they should be obligated to prove it, and also to show that the threat is systemic and not just the result of poor management.


Finally, it is worth noting that authors have now appeared in the argument.  Whereas earlier the issue was “the works of scholarly publishers,” now, in classical fashion, the authors have been belatedly recalled and tossed in to the mix.  Publishers have made pathos-filled appeals on behalf of starving authors in order to justify their own businesses since copyright began.  But academic authors are different, so this reflexive reference to authors should not go unchallenged.  In response to this argument, there are two questions the Court of Appeals should examine closely.  First, how much money actually makes its way into the hands of authors, rather than the publishers, from permission fees paid to the Copyright Clearance Center?  Second, what role, if any, do these fees play in creating the incentive that academic authors have to create scholarly monographs, recognizing that all of the books in question in this lawsuit are such monographs, rather than textbooks.  These questions are perfectly within the competence of the Court of Appeals, both because they are relevant to the second fair use factor and because the publishers’ reply brief has put them at issue.


Th Eleventh Circuit Court of Appeals is asked to swallow lots of unbelievable things in this reply brief.  Now is the time for them to sit down at the metaphorical breakfast table (harkening back to the White Queen) and demand substantive information from the plaintiffs before they finish this meal.

	

	
	




	
	

				

			Libraries, Scholarly Publishing, Technologies, Uncategorized
		

			
Meet me at the intersection

		

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In March the ACRL published a new White Paper on Intersections of Scholarly Communication and Information Literacy: Creating Strategic Collaborations for a Changing Academic Environment which looks at the ways in which the dramatic changes taking place in the environment for scholarly communication have necessary consequences for nearly all librarians, and especially those who teach information literacy to graduate and undergraduate students.  As the current Chair of the ACRL’s Committee on Research and the Scholarly Environment, I had a small role in preparing the White Paper (most of the heavy lifting was done by Barbara DeFelice of Dartmouth, who chaired an ad hoc working group), and so was asked to take part in a program about the document and the issue at the ACRL Conference earlier this month.  On the morning of that program, I found in my email a link that led me into a fascinating story about exactly why this intersection can be so tricky to navigate, which I decided I would share here as well as at the panel discussion.


Coincidentally, the story involves a Duke professor, Dr. Mark Goodacre of Duke Divinity School, who is an active and engaging blogger on the general topic of the New Testament and early Christian literature.  Several years ago, Mark wrote a blog post outlining a possible approach to a long-standing problem in the interpretation of one of the non-canonical gospels, the Gospel of Peter.  By Mark’s own admission it was a casual piece of writing, as many academic blogs are (he calls it “random jottings,” but that is probably excessively modest).  Recently, however, an entirely non-casual peer-reviewed article critiquing Mark’s blog post has been published in a highly-regarded journal in the field.


Mark tells his own story, and links to the relevant documents, in this later blog post.  He also raises some interesting questions about the etiquette of the situation, which are discussed at length in the comments to the post.  The entire discussion is worth reading, but I want to make a specific comment about how it relates to those intersections of scholarly communications and information literacy.


One of the things that information literacy librarians spend a lot of time teaching about is the set of “signals” by which the scholarly authority of a particular work is measured.  Everything from the presence of footnotes to a notation that the article has been peer-reviewed can help students determine where on the continuum of authority a particular work they discover belongs.  Also, students learn from librarians and others how to “backtrack” from one article to find those conversation partners whose combined contributions help form a complete and coherent view of any particular issue.


Both of these basic skills are undermined, to some extent, by situations such as the one Mark recounts.  For one thing, it is perfectly possible that he could remove or revise his original blog post.  Now Mark is a scholar and a very astute blogger, so I would expect him to acknowledge and explain any subsequent changes he might make to that post.  But the possibility certainly exists, for this set of writings or for others, that the scholarly works under discussion could change or even disappear.  That possibility presents those who teach about research skills a new challenge — to explain and help students account for the potential impermanence of the scholarly record.  And even if they remain intact and unchanged, the challenge of helping students understand that a peer-reviewed work might be based on one that was never peer-reviewed, and consider what impact that possibility would have on their judgments about authority, persists.


I offer this anecdote as concrete evidence that the changing system of scholarly communications compels all librarians, and especially those who teach information literacy, to remain aware of what we might call the “socioeconomic” structure of information.  That is, the conditions — social, economic, legal and technological — under which different forms and types of information are created and disseminated.  We are witnessing, I believe, a radical disaggregation of scholarship, as new formats, new business models and diverse levels of accessibility become the norm for some disciplines and for many scholars.  Even in a humanities field like Early Christian Literature, which still preserves many of its traditional modes of communication, this splintering of once solid lines has its effect.  And for our students, whose entire information-seeking lives will be lived in an environment where technology, copyright and licenses control what they can find and what they can do with what they find, education on these matters is no longer optional.


It is precisely these changes, and the ever-more-pressing need to take them into account, that the ACRL White Paper is intended to document and encourage.  It deserves attention from the library community precisely because we cannot ignore the revolution in scholarly communications itself.

	

	
	




	
	

				

			Copyright Issues and Legislation, international IP, Libraries, Scholarly Publishing
		

			
The quest for “super-property”

		

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Before yesterday’s ruling in the Kirtsaeng v. John Wiley & Sons Supreme Court case, I had written a post about the oddity that copyright law is the only form of property right that does not include a specific mechanism by which the rights holder can lose their rights if they do not use the property for a long period of time.  In this way copyright violates one of the principal reasons that property rights are granted, to encourage the efficient use of resources.


In thinking about the Kirtsaeng case — the decision is here, there is a Chronicle of Higher Education story about the ruling here, and Kenny Crews of Columbia offers a detailed analysis of the decision here — I have come to realize that the same issue of whether or not copyright should behave like other forms of property was in play in this litigation.  In short, by trying to enforce a “geographical” reading of the doctrine of first sale, publishers were attempting to create a “super” property right that would gave them a level of control that other property owners do not get.


On a trip to Turkey two years ago, I purchased a silver and onyx ring while in Cappadocia, where onyx is mined in large quantity.  My wife and I also purchased a carpet for our dining room.  Both items could have been purchased in the U.S., but both were less expensive in Kaymakli than they would have been had we done our shopping in Raleigh.


I mention this small shopping spree to make two points.  First, the sale of these goods at lower prices in other countries than are available in the U.S. does not, apparently, make it impossible for U.S. merchants to sell at higher prices to shoppers here at home.  Price discrimination, as it is called when vendors adjust their price structure to take account of local market conditions, does not depend, apparently, on an absolute prohibition on importation or cross-border sales.  Second, now that we own the ring and the carpet, we are free to do with them what we like.  No one can tell us where to place the carpet, or to what events I may or may not wear my ring.  And we can resell either item if we wish.


What publishers wanted from the Supreme Court was an unprecedented level of control that no other property owner gets — the right to control the use of a copy that was manufactured in another country (i.e. whether or not it could be lent) and to control any resale of that copy.


Let’s think back for a minute to the Costco v. Omega case from a few years ago that also dealt with unauthorized importation of copyrighted goods.


First, it is interesting that that case involved copyright at all, since the goods in question were watches, which are not copyrightable subject matter.  Omega was able to bring the suit only by registering a small emblem on the back of the watches for U.S copyright protection.  They had to do this, of course, because simply being the owner of a batch of watches would not have given them control over the importation of legally purchased watches to the U.S.  They resorted to this ploy to take advantage of the unique feature of copyright that they believed gave them more control than “mere” property ownership did.  They were trying to exploit the “super” property features of copyright.


Second, even though Omega got a tie from the Supreme Court that left in place a favorable decision for them from the Ninth Circuit, they were ultimately unable to take advantage of that quasi-victory.  On remand, the District Court granted summary judgment to Costco because, it held, Omega was trying to misuse its copyright to prevent perfectly legal importation.  In spite of that ruling (which is under appeal), I am pretty confident that Omega still sells watches for less in South America than it does in North America.  Again, an absolute ban on importation is not a prerequisite to price discrimination; while there is always some “leakage” of “grey market” goods, price discrimination works well enough that all kinds of businesses that sell different types of property depend on it anyway.


So the outraged threats that are being heard from publishers about how U.S. market prices will now have to be charged for copies sold in the developing world are simply ridiculous.  One extremely vocal advocate for the publishing position puts the claim this way, in a comment to the Chronicle story linked above:


The only practical effect of the decision will be to stop the practice of publishers licensing the sale of U.S. works for sale in foreign countries in cheaper editions, thus greatly inhibiting the flow of knowledge to underdeveloped countries.


If academic publishers were really to do this, it would be a crime against their self-declared mission of making knowledge available.  It would also be bad business; a self-defeating fit of pique that would cost them a lot of money.  But no, I am confident that publishers will still sell books at prices adjusted for market conditions, unless they are even worse businesspeople than I think they are.  Perhaps it will be necessary to adjust prices to account for that leakage which the Supreme Court has said cannot be choked off entirely, but I actually suspect that that small loss is already built in to decisions about pricing.


One way to think about what was being considered in the Kirtsaeng case is to look at it as a tariff — an attempt to guarantee extra, post-sale income from goods when they were imported into the United States by forcing purchasers to license certain uses of those goods they had already bought.  The U.S. disfavors tariffs, and where they do exist the money is paid to the government, which is trying to protect specific domestic industries.  If Kirtsaeng had gone the other way, however, there would have been, in effect, a tariff on importing books and films that would have been an entirely private benefit.  From this perspective, as from that of property rights as a general notion, what was being sought by the publishers in Kirtsaeng was unprecedented, as well as unwise.


[By the way, Mike Masnick of TechDirt also uses this analogy with tariffs in one of his comments on the case, and his post is an indication that the publishers are already beginning to pull strings to try and get Congress to give them the extraordinary benefit that the Supreme Court has just denied them.]


One argument that the publishers have made and continue to make is that the “parade of horribles” that was predicted by libraries and many others in the Court would not have actually come about; they frequently say that what they were asking for was actually the state of the law for the past thirty years, and things have run pretty smoothly up till now.  But to make that claim is to beg the question of why the case had to be brought at all.  Libraries did not sue over first sale; neither did Supap Kirtsaeng.  It was publishers who decided that they needed to go to court because, obviously, they wanted to change the conditions that actually have been in place up till now.  Publishers were seeking a “new deal,” a super-property right that is unprecedented in any other market place.  And what libraries “won” (remembering that no library was a party to the case) was simply the right to proceed as we have been for many years.  I have no doubt that if the lower courts had been upheld in this case, publishers would begin to demand “public lending fees” from libraries whenever a book was printed in another country, and would have moved operations offshore to increase the situations in which they could demand such a fee (as the Second Circuit Court of Appeals acknowledged was a likely outcome).  It is an overstatement to call this a victory for libraries; it was merely a successful defense of what we have done for many years, which, it turns out, is something that our courts really value and appreciate.


 

	

	
	




	
	

				

			Copyright Issues and Legislation, Fair Use, Libraries, Scholarly Publishing
		

			
GSU and Sony

		

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Another day, another silly brief filed in support of the plaintiff publishers in the Georgia State copyright infringement appeal.  This one comes from the American Association of University Presses (AAUP).   I wish it were not the case, but I am past being shocked that university presses are so anxious to support a lawsuit against universities, and one that, if successful, would significantly increases costs for students and/or diminish the funds available to buy materials from university presses.  The short-sighted thirst for more dollars from university budgets and an overall blindness to the big-picture best interests of higher education has long been the fundamental characteristic of this lawsuit.


Many of the arguments in the AAUP brief are familiar from the other briefs.  It should not matter that the copying complained of was non-commercial and for educational purposes.  The course pack cases (which all involved commercial intermediaries who made the copies and sold the course packs) are perfect analogies to the present situation in spite of the factual differences.  The judge also erred, apparently, by inquiring into the factual character of each challenged use of an excerpt instead of recognizing that the publishers just don’t like fair use, except when they benefit from it, so factual inquiries are irrelevant.  All of this we have heard before, and I am tired of writing about it.


But while reading this brief, and the press release the AAUP issued about it, it struck me that there are things we can learn about this case by making comparisons to the famous Supreme Court case of Sony v. Universal Pictures, in which the Court decided that consumers making temporary copies of television broadcasts on the “new” video recording devices then being market was fair use (and therefore did not find Sony guilty of contributory infringement for market the devices).  One argument in particular made by the AAUP reminded me of Sony and the lesson we should learn from it.


We have frequently heard the complaint that the judge missed the forest for the trees in the GSU case.  That is, she focused too much on the specific excerpts that were being challenged and failed to appreciate the scope of the harm that the overall practice of e-reserves would allegedly do to publishers.  In the AAUP brief, this argument appears as an objection to the way Judge Evans analyzed market harm, the fourth fair use factor.  The complaint is that she looked at figures for permission income for each book in question, which she found to be “negligible” in most cases, and did not look more broadly at the overall importance of permission income generally to university presses.  In their press release the AAUP calls Judge Evans’ analysis “niggling.”


So now let’s consider Sony.  In that case, the plaintiffs were faced with a much more massive threat of unauthorized copying.  Entire works were being copied, rather than just 10% or a single chapter of each work.  And the potential market harm was even greater, since the TV and movie studios were afraid that there advertising revenues would drop sharply if millions of Americans began taping their favorite shows rather than watching them when the executives and their advertisers expected them to.  Surely fair use could not sanction such a massive and pervasive threat.  And yet it did.  The Court did not even do the level of financial analysis that Judge Evans did in the GSU case.  Justice Stevens, in Sony, simply considered the overall situation — individual consumers who used the VCR to “time-shift” for more convenient viewing — and, finding it was fair use, dismissed wholesale the concern for the alleged market harm that would occur if each of those individual consumers each exercised this fair use right.  If Judge Evans was niggling in her assessment of market harm, the Supreme Court was downright uninterested in Sony.


What we learn from this analysis is that fair use represents a boundary on the rights held by a copyright owner.  Market harm is a factor to consider, but when a use is clearly fair use — as these uses of 10% or less of a work were found to be, even in some instances where the Judge felt that market harm factor counted against the fair use argument — the assertion that one could still have squeezed some more money out of those uses will not be heard.  After all, I could make some money by charging pedestrians to walk on the sidewalk that crosses my residential property, but society has simply decided that I will not be allowed to do that; the easement for a public right of way that allows sidewalks functions as a boundary, of a sort, on my property right.  And in any case, the assertion that a license fee might have been earned, even when the rights holder is not in fact collecting such a fee or depending on it, could always be used to undermine fair use; many courts have recognized this circularity and refused to let it be determinative of fair use questions.


The confusion that reigns when one is swept away in this whirlpool of circularity is nicely illustrated by this howler for the AAUP brief:


Further, one of the key reasons that permissions income is low is that some universities have failed to pay required permissions fees for their electronic coursepacks. Publishers should certainly not be penalized because of the universities’ failure to pay them the permissions to which they are entitled by law.


Neat, isn’t it?  The small amount of permission income that we actually get, and its consequent minor impact on our business, should not be considered in the fair use analysis because it would be higher if it weren’t for this pesky fair use thing.  We could make more money without fair use, and therefore that money should be taken into account when deciding whether or not something is fair use.  A truly bizarre argument that is only possible when one fails to recognize that all property rights, including rights over intellectual property, have to have boundaries.


As these briefs have been filed, and the weakness of the plaintiffs’ arguments on appeal have been revealed, I have gained new respect for the careful and thorough nature of Judge Evans’ original decision.  I do not entirely agree with her on every point, but she did her job very well.  The appeal, it seems to me, is looking more and more desperate.


That reflection leads me to end this post on a different, but related, topic.  In a recent article about a meeting of the the Professional and Scholarly Publishing Division of the Association of American Publishers, Blaise Simqu, who is President and CEO of Sage Publishing, one of the GSU plaintiffs, is quoted as saying this in a speech:


Publishers are, for the first time, having to care about the end user, and that’s a huge cultural shift


Libraries represent and serve a significant portion of Sage’s end users, and the statement that publishers would like to know more about us is good news.  It often feels like publishers think of libraries as massive infringement factories, full of irresponsible pirates who are just waiting for a chance to digitize everything and give it away for free on the Internet.  In fact, it is usually the library on a college or university campus that is teaching and advocating for responsible copyright practices.  And our digitization decisions are made very carefully, partly out of respect for copyright and partly because the process of digitization and online access is costly.  I think we would like very much to sit down with Mr. Simqu (I have actually had that pleasure) and his counterparts to talk about how we see our mission and why we take the positions about copyright that we do.  But there is a huge obstacle in the way of such frank and open discussions, in the shape of the ongoing lawsuit against Georgia State.  If Mr Simqu now realizes that he needs to care about libraries, a great first step would be to drop this appeal.