Category Archives: Libraries

Copyright in the Classroom, Fair Use, Libraries

Law and politics in the GSU case

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Last week we saw the first real flurry of activity reported in the publisher appeal of the Georgia State University fair use victory.  The news items and filings call our attention to both the legal and the political aspects of the appeal.

Starting with the law, over the weekend I gave the publishers’ Appellants Brief a preliminary examination, and want to highlight four points from that brief that the library community needs to be aware of and to know how to refute.

The most fundamental part of the publishers’ argument is the analogy between the practice of e-reserves at Georgia State and the cases that were decided in the 1990s regarding printed course packs.  At trial, Judge Evans rejected this analogy for a good reason that the publishers largely ignore.  They assert that the Judge impermissibly distinguished print from digital “course packs” and thereby violated the principle that copyright law requires “media neutrality.”  It is quite true that courts often tell us that copyright should be technologically neutral, although that is by no means a hard and fast rule — the fact that there is a special provision in the law itself regarding Digital Audio Tape proves that Congress itself is not really dedicated to “media neutrality.”

But of course the real problem with this argument is that it entirely misses the point of the distinction Judge Evans drew.  She simply did not decide to treat digital materials differently from print; she quite properly treated a non-commercial use differently from a commercial use in the fair use analysis.  The publishers want to throw sand in the Appeals Court’s eyes here by distracting them from the correct fair use analysis, which looks at specific circumstances.  In this case, there was no commercial intermediary for the e-reserves, but there was for the course packs involved in the cases the publishers cite.  Fundamental difference in facts equals different result on fair use, and no error on the part of the trial judge.  Instead, a persistent and probably willful failure to understand basic fair use law on the part of publishers.

A second argument that is key to the publishers’ brief is that only transformative uses can be fair use.  Judge Evans specifically found that the e-reserves at GSU were not transformative, and that is a point that the Appeals Court should re-examine carefully.  But even if that is affirmed on appeal, it does not rule out fair use.  Again, a complete reading of Judge Evans’ ruling shows that she got the fair use point exactly right — a use does not have to be transformative in order to be fair use.

When the Supreme Court re-calibrated the fair use analysis to focus on transformativeness in Campbell v. Acuff-Rose Music, they made this point explicitly, noting in a footnote that some uses could be fair without being transformative.  The publishers acknowledge that Judge Evans cited this footnote, but go on to argue, incredibly, that there is no justification for this contention in the statute, even though they recognize that the statue gives as one of its paradigmatic examples of fair use “multiple copies for classroom use.”  They still argue that Judge Evans should have given great weight to the alleged non-transformativeness of the use, apparently feeling that Congress did not intend the plain sense of that language about multiple copies for classroom use, or that it somehow was only sanctioning transformative multiple copies for teaching (a contention that does not even make linguistic sense).  It is absurd, but it shows how desperately hard it is to undermine the careful work Judge Evans did and how completely the publishers believe that the law is designed to serve their needs and only their needs.

Two other legal points before we turn to politics.  First, the publishers insist strenuously on the 1000 word limit for classroom copying that comes from the 1976 Guidelines on that topic, and which Judge Evans rejected.  They make no mention of the 10% standard from those guidelines, which the Judge did adopt, because the language of the Guidelines is “whichever is less.”  It is precisely that language, of course, that makes the Guidelines “impractical and unnecessary,” as Judge Evans said, and why they were never agreed to by most higher education groups.  Second, the plaintiff’s brief asserts that Judge Evans erred by approaching the analysis of market harm on a work-by-work basis.  Instead she should have looked at the overall impact of these “digital Course packs” on publishers overall, and accepted, apparently, their analysis of market harm even though it was not borne out by the revenue figures they were forced to provide to her. This argument overlooks the best reason of all for evaluating market harm on a case-by-case basis, the fact that publishers and the Copyright Clearance Center do not make digital licenses available on a uniform basis.  Each publisher takes a different approach and even within a publisher’s list there will be licensing differences for some works.  Although the CCC is touted to the courts as a uniform licensing solution, libraries that use it, and even those few who use its blanket license, know that it is far from uniform.  Since libraries must continue to do work-by-work analysis to obtain licenses, at vastly different prices and terms, and with uneven availability, the courts MUST look at fair use and market harm on a work-by-work basis.

Based on the weakness of the brief, I think the law still favors GSU.  But politics is a different matter.  Last week we learned that the United States government has asked for extra time to decide if it will intervene, and it has made clear that its intervention would either support the publishers or favor neither party.  The one thing we know for sure is that the Obama administration has no intention of defending educational fair use.  Why not?  Probably because of the revolving door between the Copyright Office (and other administration advisers on IP) and industry.  Most of the people who talk to the administration about IP policy have been either lawyers for the industry or lobbyists.  Unfortunately, the educational community cannot view this administration, or most of its predecessors, for that matter, as impartial arbiters of fair policy on copyright matters.

It is still possible, and even likely, I think, that the Court of Appeals will largely uphold the lower court ruling on GSU.  Judge Evans’ analysis was very careful, even fastidious, and there is is not much room to knock it down.  The publishers’ brief wants to win on “big picture” issues unique to its business model, but we can hope that the Court of Appeals will understand that this is not what fair use is about.  But even if they do, we are still left with an unfortunate situation, in which so much scholarly work, work created for a social benefit and usually with costs underwritten by taxpayers, is turned over gratis into the hands of commercial entities.  And those entities have proven that they will not shrink from fundamental attacks on teaching and research in order to squeeze every penny they can from that work, money that comes time and again from the public.  This is iniquitous for the public and for the scholarly authors, it is reaping what one does not sow, and it turns the purpose of copyright law on its head. But it is also business as usual for the commercial scholarly publishing business.

Last fall I had extended conversations with two senior executives from two of the plaintiff publishers in the GSU case.  I came away from those conversations convinced that both men genuinely saw themselves as providing a benefit for scholarship.  I do not doubt their sincerity, although the one who told me he could “live with” a 10% standard for e-reserve fair use obviously had little input on this brief, which jettisons 10% for a maximum of 1000 words.  But they are wedded to a business model that was once necessary for scholarship and simply is not any longer, and their denial of that fact, and desperate defense of the businesses they run (which is only to be expected) now poses a threat to the educational mission of colleges and universities.  The copyright in most of these works is owned by our faculty members, and it is well past time that we just refused to transfer those rights to commercial entities that undermine our best interests.  Libraries and faculty senates must accelerate the pace at which they embrace new models — and non-profit older models — for the dissemination of scholarship.  We know the change is coming, and actions such as those undertaken by these publishers as they continue to push the lawsuit against GSU, prove beyond doubt that we cannot wait much longer before scholars simply take their works and their rights out of commercial hands.

Copyright Issues and Legislation, Libraries

It has started already

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By now I hope most readers are familiar with the case of John Wiley v. Supap Kirtsaeng, which was argued before the Supreme Court last October.  The case involves the doctrine of First Sale in the United States, which underlies library lending and also allows consumers to buy and sell used books, DVDs, etc.  The Supreme Court is being asked to reconcile conflicting opinions from the lower Courts of Appeal about what kinds of copyrighted materials are subject to first sale — that is, can be lent or resold without the permission of the rights holder.  Specifically, publisher Wiley has asked to Court to uphold the Second Circuit, which ruled that first sale only applied to copyrighted materials that were manufactured in the United States.

If you need more background on first sale and the Kirtsaeng case, check out this page of fast facts from the Library Copyright Alliance.  I have also written about the case before, arguing that in the new environment created when the U.S joined international copyright treaties, interpreting first sale in light of outdated rules about where something is manufactured does not make sense.  But right now I want to focus on a specific argument made by the publishers before the Court, in light of two experiences I have had in the past 24 hours.

The Library Copyright Alliance filed an excellent brief with the Supreme Court in this case, arguing that a ruling limiting first sale to works manufactured in the U.S. could have devastating effects on libraries.  The Court seems to have spent a lot of time discussing this “parade of horribles,” and I hope that whatever decision is finally made by the Court, allowances are made to protect libraries.  But the response from the publishers in regard to these putative threats was to simply assert that they would not happen.  The law, they argued, already allows enough room for libraries to go about their business, and we publishers have no interest in disturbing the practices that have been in place for years.

These are comforting reassurances, suggesting that publishers, like most of the rest of the American population, likes libraries and wants to see them flourish.  But can we really rest assured?

Yesterday one of our librarians came to me about a film we had bought.  In response to a faculty request, we purchased a DVD of this film through an ordinary commercial channel.  Going directly to a retail outlet in this case was the fastest way to fulfill the request, as librarians will surely understand.  But somehow the film’s producer found out that our library owned a copy of this film, and they have been asserting to us that we need to buy an additional license, at three times the retail price we paid for the DVD, in order to lend the film.  The argument is incorrect, of course.  The copyright law allows us to lend any lawfully made copy that we acquire, without permission or a lending license.  This is not the case in every country; some nations grant to the copyright holder a “public lending right” that forces libraries to pay extra fees.  But no such right exists in the U.S., and first sale allows us to lend the DVD we bought.  Also, there is no indication that the DVD was manufactured abroad, so even an adverse decision in Kirtsaeng would not change our situation.

Then this morning I had a conversation with a lawyer at another institution about an analogous situation.  A donor to their library had given them some books, amongst which was a copy of a specialized textbook that is currently in use at the school.  Subsequently, the library has been contacted by the publisher of the textbook who has told them that they are not permitted to place the copy of the book that they were given in their library.  The reason given for this prohibition is apparently because they do not want copies of the book lent, and because students might make photocopies rather than each buying their own copy.  The publisher further told the school that they would never sell a copy of the textbook to a library.

Publishers are free to discriminate on prices of course, and even to refuse to sell to libraries.  But to do so they have to lock down channels of acquisition.  We bought our film from a retail website because, as I said, it was the quickest way to fill a faculty request.  Obviously the site made no attempt to determine what “kind” of customer we were, and the producer had clearly decided to use this retail outlet.  The text book at the school I spoke with was a donation.  The answer to the rights holder trying to restrict lending in both cases is the same — tough luck.  First sale covers these situations and allows libraries (and everyone else) to lend lawfully made materials without permission.

In light of Kirtsaeng it is important to note that in neither case is there any indication that the works in question were manufactured abroad.  But if the Supreme Court does decide that only materials manufactured in the U.S. are “lawfully made” for purposes of first sale, I think two things are obvious, based on these two experiences and many others like them.

First, publishers are anxious for an excuse to charge libraries a differential price to obtain books that will be lent.  They already do this with journals, so the claim that they do not want to do it for books is simply incredible.  And even before a final decision in Kirtsaeng, some publishers are already trying to bully libraries into paying more.  As long as retail channels are available to us and first sale protects lending, those efforts will fail.  But if publishers cannot lock down and segregate their distribution channels, they may be able to undermine first sale.

That brings me to the second obvious thing.  If the Supreme Court does hold that first sale applies only to copyrighted works made in the U.S., publishers will have a strong incentive to move their manufacturing operations off-shore.  In making its ruling in Kirtsaeng the Second Circuit admitted as much.  If a publisher has its books printed or its DVDs pressed in the U.S., it will be very difficult for it to implement truly tiered pricing.  But if it moves those operations overseas, it might be able to stop libraries from lending materials without a separate, expensive license.  It might also be able to forbid libraries from lending certain books entirely, like textbooks.  It might even be able to stop students from selling their textbooks second-hand to the next crop of students taking the course.  The experiences libraries have had with e-books proves that these goals are important to publishers.  So do the two experiences outlined above.

In spite of assurances made to convince the Supreme Court to rule in its favor, this “parade of horribles” is really quite likely if first sale is restricted.  Indeed, I am very sure these things will be attempted in that event.  Such efforts have started already.

 

Copyright Issues and Legislation, Libraries, Licensing

Is the CCC having an “Instagram” moment?

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As many readers will know, the past few weeks have seen a couple of controversies over end user license agreements (EULAs) and Internet services.  In the library world, Yankee Book Peddler, an order fulfillment service, announced that they would introduce such an end user license whenever someone logged in to their ordering database.  The license terms included indemnifications and submission to the law of New Hampshire.  Both of these terms are impossible for most public institutions, and there was a lot of outcry.  Eventually, YBP withdrew its plan to introduce the EULA.  Then, earlier this week, there was a lot of controversy when Instagram announced that its new license would gave it the right to sell photos uploaded by subscribers, even for commercial purposes like advertising.  Again there was much consternation and an eventual repudiation of its earlier position from Instagram.

The use of EULAs for academic services instead of negotiating terms with each customer is especially problematic.  For one thing, those licenses often contain terms that are unacceptable and, for public institutions, may be invalidated by state laws and regulations over purchasing by state entities.  Worse, the EULAs are by definition required as a condition of use, meaning that the staff members who actually accept them are seldom the employees who actually have the authority to bind a university to a contract.

These considerations were in my mind when our e-reserves specialist informed this week about “new” licensing terms he had encountered when placing a request for a permission license with the Copyright Clearance Center.  A two and a half page set of terms was suddenly appearing with each order confirmation, and they contained a lot of the same troubling assertions that we saw with the proposed, but never implemented, YBP license.  Institutions indemnify CCC and agree to defend them against claims arising from any use outside the scope of the license.  Institutions agree to the application of New York law and the jurisdiction of New York courts.  Most distressing, each institution that uses the CCC agrees that that organization, which has been active in financing the legal case against Georgia State University, has the right to access and audit university records, which is not only a possible violation of our obligations under FERPA, but also seems like giving a potential adversary free pre-litigation discovery rights.

As with the proposed YBP license, several of the terms in this EULA are impossible for most public institutions, which usually cannot agree to indemnifications — because they could create an uncontrolled drain on taxpayer dollars — or submission to the laws and jurisdiction of another state.  Even for private institutions, which are not forbidden by law from agreeing to such terms, the license contains things we would try to negotiate around if the CCC had engaged us at the enterprise level rather than simply imposing these terms for acceptance by employees not actually empowered to do so.

Since I first learned about these terms on Tuesday, it has become less clear to me that they are actually new.  It turns out that our e-reserve employees have been clicking through an “accept the terms and conditions” box when they place orders with CCC for some time.  It is likely that other campus employees, including administrative assistants for departments, have done the same thing.  I simply do not know if these terms that suddenly appeared on the order confirmation are new, or just a more assertive way of making the older terms known.  In asking around, I discovered that at least one state university encountered and objected to similar terms several years ago, and negotiated separately with the CCC to arrive at a different agreement that supersedes any terms agreed to at end-user level.

My immediate reaction to these terms is that many of us will want to have similar negotiations to supersede this EULA, and that all of the CCC’s public customers will have to do so.  These terms might simply be invalid as a matter of state law for some public institutions, and they could be objected to by many other CCC customers on the basis that the end-users who must click through the license simply lack the authority to commit their employers to those terms.

For the record, I do not yet know what my own institution’s reaction will be; I have scheduled a conversation about the CCC terms with our Office of University Counsel.  But it still seems important to share the information about this new manifestation, at least, of terms that may well be unfamiliar to those folks who are actually responsible for contracting and purchasing decisions at their institutions.

I would be interested to hear from institutions that have already attempted to negotiate directly with CCC to supersede these terms.  I hope the comments to this post fill up with the news that others are way ahead of me and have acted to prevent the problems this license seems to cause.

Finally, I wonder what impact these licensing terms could have on a fair use argument, especially in light of the ruling by Judge Evans in the Georgia State case.  In that ruling, the Judge held that the fourth fair use factor, impact on the market for the original, favored the publisher (and so weighed against fair use) IF a license for the digital excerpt (not simply a license for another format) was “readily available at a reasonable price” (pp. 72 – 81 of the opinion).  My question is, could the licensing terms imposed by the CCC have an effect on whether or not the license is “readily available.”  If a public institution, including, possibly, Georgia State, is prevented by state law from accepting terms like the ones included in each permission transaction from the CCC, can that permission really be said to be readily available?  How can something be readily available if it is conditioned upon acceptance of an agreement that the institution is not allowed to accept?  And if such a license cannot really be considered readily available, how dramatically does that impact the fair use analysis, especially in those cases where a publisher will not accept permission requests except through the CCC?

As I say, we are still deciding what these licensing terms, whether they are brand new or of long-standing, mean for our business with the CCC.  But it seems likely that for some institutions, at least, these terms make the use of that permission service an impossibility unless they negotiate a superseding agreement.  And for many of the rest of us, this added roadblock will cause us to rethink where and when we can purchase licenses, and when we must rely on fair use simply because we have no other feasible alternative.

Copyright Issues and Legislation, Fair Use, Libraries

A big win for fair use and libraries

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What a stretch of four months it has been!

First, in July, we had the ruling in the Georgia State lawsuit affirming that most of the excerpts for teaching that were challenged as copyright infringement were actually fair use.  The decision is being appealed, but libraries go in to that appeal on the winning side, which is always the better place to be.

Then, last  week we learned that the lawsuit filed against UCLA over digital streamed video had been dismissed for the second time.  The dismissal, so far, is only noted in the minutes taken by the Clerk of the Court during a hearing, which are filed in the docket.  So we do not know why the case was dismissed, although it seems to be the same reasons the first one was — because the groups bringing the suit either do not own the rights they are trying to enforce or already granted a license broad enough to cover the use they now object to.  More importantly, we do not yet know if the dismissal was with prejudice or without, meaning whether or not the plaintiffs will be allowed to refile the case again.

But tonight is the big news, in the lawsuit brought against the HathiTrust and five of its university partners by the Authors Guild, several foreign associations similar to the AG, and a handful of named authors, including Fay Weldon and J.R. Salamanca.  In that case, Judge Harold Baer of the Southern District of New York has ruled on various motions for judgment on the pleadings and summary judgment, and he has completely vindicated Hathi and the libraries.

A copy of the ruling is here.

A lot is happening in this opinion, which I will try to sort out briefly.

First, the plaintiff’s motion asking the Court to rule that fair use was not available to the libraries as a defense, alleging that because libraries had the benefit of the specific section 08 exceptions they should not also be able to assert fair use, was denied.  The Judge spent comparatively little time on this ridiculous claim, which flies in the face of the clear language of section 108 itself.  He entirely rejected the argument and dismissed the claim.

Second, the Judge ruled on a motion for judgment on the pleadings (also called judgment as a matter of law) raised by the defendants (the libraries and HathiTrust) that asserted two things.  First, it argued that the copyright law does not allow associations like the Authors Guild to sue on behalf of its members.  On this argument, the Judge agreed as to the US association (the Authors Guild), but held that he would not foreclose a foreign association from bringing a suit because of our treaty obligations.  The second argument was that the whole issue about the Orphan Works project proposed by HathiTrust was not “ripe” for a decision because nothing had been done as of yet.  The Judge declined to decide that there was a risk of infringement until and unless the project got underway.  So on this motion, the defendants won two-thirds of their arguments and the one they lost, about associational standing for foreign organizations, turns out not to matter.

Because the real news is that the Judge granted the defendants motion for summary judgment on the issue of fair use.  Judge Baer found that the arguments made that the mass digitization project and the Hathi Digital Library was fair use were so strong that he made the decision without a trial, on summary judgment.

The Judge did a four factor analysis to arrive at his conclusion, and it is worth looking at that analysis.

On the first factor, Judge Baer first held that the purpose of the use was research and scholarship, which are favored in the fair use statute.  But he went on to hold that the use of these copyrighted materials in HathiTrust was also a transformational use.  Unlike Judge Evans in the GSU case, Judge Baer cited case law that has determined that a use can be transformational because it has a different purpose, not only when an actual change in content has been made.  And providing a searchable database of books, within copyrighted works only available to the visually-impaired, was, in the Court’s opinion, transformative.

Because the purpose was transformative, the Judge held that the second factor about the types of works involved, was not dispositive, since transformative works of even very creative productions (like “Oh, Pretty Woman”) have been held to be fair.

On the third factor, the Judge said that the amount used, even where entire works ware scanned, was reasonable to accomplish the purpose.

Finally, the Court found that the issue of market harm did not undermine fair use.  There is no direct market competition between the HathiTrust and any existing market for the works in question.  And as for the argument that HathiTrust foreclosed a potential licensing market, the Judge said that rights holders were not allowed to preempt transformative uses because of a potential market.

At the end, Judge Baer concludes with this sentence:

I cannot imagine a definition of fair used that would not encompass the transformative uses made by the defendants and would require that I terminate this invaluable contribution to the progress of science and the cultivation of the arts that at the same time effectuates the ideals of the ADA.

As the last part of this comment indicates, the Judge also upheld the provision of digital files to persons with visual disabilities to facilitate adaptive access, using a combination of fair use and section 121of the copyright law.  Hard to believe that the AG thought it was a good idea to challenge that practice, but they did.  So overall this is a comprehensive win for the libraries and for the important public interest that they serve.

This opinion follows a clear line of reasoning in fair use cases over the past three decades, and it applies that reasoning squarely to library services.  I have bemoaned these lawsuits in the past, but I have to admit that I am beginning to feel grateful for them.  The string of opinions that is now taking shape ought to give librarians a great deal more confidence when they are making reasonable applications of fair use.  Where once I feared a chilling effect, I am now sensing a warming glow.

Copyright Issues and Legislation, Libraries, Scholarly Publishing

The six million dollar fair use standard

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The trial judge in the Georgia State copyright infringement lawsuit filed her final judgment in the case yesterday, bringing that portion of the lawsuit to a close.  The only news left for this final order was the amount of money that the plaintiff publishers would be forced to pay to Georgia State.  Judge Evans had already ruled that GSU was “the prevailing party” and therefore entitled to have the other side pay their fees and costs, and a lot of motions were filed arguing over what those numbers would be.  The final amount (including both attorney fees and court costs) is $2,947,085.10.

Based on the way these things usually turn out, Georgia State and its lawyers probably think this number is too low.  The publishers and their lawyers undoubtedly think it is too high.  The result is that it is probably a reasonable estimate of what it actually cost one side to litigate this case.  So if we want to estimate how much it cost to get us where we are today, that estimate would be about six million dollars, assuming that the plaintiffs spent approximately the same amount that they must now pay to the defendants.

And please do not forget; half of that money is coming from the Copyright Clearance Center, a corporation that says it acts on behalf of scholarly authors and to whom universities pay large sums of money.  Our own dollars — lots of them — are being used to bring this lawsuit to squeeze more dollars out of us.

The result of all this expenditure, thus far, has been a judgment that gives us what the publishers originally said they wanted.  The Judge has articulated a reasonable fair use standard.  It is too rigid for my taste, and too permissive for the publishers, but it is not unreasonable.  If it was left to stand, nothing much would change, except that we would have a greater degree of confidence if we confined our fair use assertions regarding the provision of digital course readings to the boundaries Judge Evans has set.  Doing that would cause some institutions to pay less for permission fees, and some to pay more.  Some schools might push the boundaries a little further, but we probably would not see the widely different interpretations of fair use in this context that we sometimes find today.  Other schools would still find that this risk is too great and continue to stay out of the e-reserve business all together.

To my mind this would not be a terrible result, although it would have cost a terrible amount of time and money to get there.  We could all probably live in a world where Judge Evans’ ruling was the last word in this case.

Unfortunately, the publishers are unwilling to live in such a world; they have already announced their intent to appeal, and they now have thirty days to file that appeal in the 11th Circuit Court of Appeals.  The only excuse for their decision is the desire to force universities to pay even more money than the already do to publishers.  Prices are not rising fast enough, apparently, so greater income from permissions is required.  If other parts of the educational mission of universities have to suffer, that too is price the publishers seem willing to pay.

We can no longer preserve the illusion that all this was about was to provide some certainty about fair use for digital course content.  The publishers spent 6 million and now could walk away with a workable, if unpopular, standard.  Instead the battle against universities and higher education will continue.  How sad.

Libraries, Scholarly Publishing

GSU and university presses

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One of the most disheartening things about the ongoing lawsuit against Georgia State University by three large publishers is the support the plaintiffs are getting from the university press community.  Presses, of course, rely on fair use all the time, and smaller presses need it even more, since neither they nor their authors can usually afford lots of permission fees.  So supporting this lawsuit seems to be contrary to the interests of smaller academic presses.

As I have said before, if the CCC and these three large presses (including the two that have the word “university” in their names) succeed in forcing libraries to spend more of their budgets on licensing fees (that are unnecessary under the current state of the law), it is presses themselves that will suffer.  That money will come out of most libraries’ collection funds, so there will be less money available to buy new monographs.  That undoubted fact will disproportionately harm university presses, many of which depend on publishing specialized monographs, which will be the first things cut (as they usually are).  Unfortunately, this is an area, often the only one, where libraries have some flexibility to adjust expenditures, and cutting highly-specialized monographs results in much less wide-spread complaints from campus communities.

It may well be that large operations like Oxford and Cambridge University Presses can rest assured that the net gain from forcing more permission fees will offset any losses in sales for new works.  But I doubt that Small State University Press can be as sanguine.  The fee income they will gain will be much smaller, and the sales losses will have a much greater impact.  One way to look at this case is as a side-long attempt by some big players in academic publishing to force smaller competitors out of business.  Yet many academic presses (but almost certainly not all) are cheering Oxford and Cambridge on from the sidelines, apparently out of the forlorn hope that someday SSUP might become as rich as they are.  Instead, they are being led off a cliff.

This all was brought home to me the other day, when a friend forwarded an e-mail to me that had been sent to the directors e-mail list of the American Association of University Presses.  In it, a university press director (I won’t say which one) encouraged colleagues who support the appeal in the case and disagree with the original decision to express that opinion by commenting on stories about the appeal in the higher ed press.  It is interesting that only those who support the appeal were asked to comment; I can’t say if there are no university press directors with a different opinion or if they were just being told to keep their thoughts to themselves.  But here is the line that first made me laugh, for obvious reasons, and then got me thinking:

So far it’s the Kevin Smiths and Paul Courants who have yelled the loudest from the library side, with a deafening silence from our side

It was rather unsettling to be identified in this way as a depersonalized representative of “the enemy”  whose voice needs to be countered.  I certainly do not object to having other people, with many different opinions, encouraged to join the debate.  But two things do trouble me about this quotation.

First, there is the clear assumption that university presses and university libraries are on opposite “sides.”  It did not have to be this way.  Most libraries are not engaged in large-scale infringement, just reasoned and reasonable fair use, in spite of the plaintiffs’ rhetoric in the heat of litigation.  And libraries did not institute this suit.  So how did we get here?

For me, part of the answer lies in the evocation of Paul Courant as the other representative of the “other side.”  Paul is in  rather a different position than I am; he is the former Provost of the University of Michigan, and now, as the University Librarian, he is the person to whom the University of Michigan Press reports.  When he is made into the archetype of the enemy by a university press director, it seems clear to me that some presses, at least, have drifted a long way from their fundamental anchor in the scholarly mission(s) of their parent institutions.

One aspect of this lawsuit, and perhaps a key factor that brought it about, is this disconnect we are seeing between some university presses and the academic values of their parent institutions.  Libraries are at the heart of the university mission, and the continuing recognition by academic administrators that a great library is a sine qua non for a great university is one reason why so many of them seem disappointed by the decision of publishers to sue libraries.  By electing to treat libraries as adversaries instead of allies, some presses demonstrate how far they have traveled from the core purpose of supporting the research and teaching mission of their universities.  Instead of dismissing or disputing the point of view of a provost or a university librarian, perhaps these presses should spend more time talking with those officials.  At many places those conversations are well underway and quite fruitful.  Where they are not, it may be time for the academic administrators to insist.

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

A not-very-appealing appeal

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To the surprise of no one, I think, the plaintiff publishers in the Georgia State litigation filed a notice of appeal on Monday.  There has already been considerable coverage of this decision, in, for example, Inside Higher Ed, the Chronicle of Higher Education, and Library Journal.

The actual Notice of Appeal is a very dull document; it merely lists the orders from the District Court with which the publishers take exception, and “respectfully give[s] notice” of the intent to appeal.  The real action yesterday was in the press releases, and there the publishers respect for the District Court was much less evident.  Indeed, there is a good deal of anger, and some crocodile tears, in these public statements.  The plaintiffs in this case have always shown more skill when crafting dramatic press releases than they have with persuasive legal arguments.  It is worth looking at some of the statements from the public statements to assess, primarily, the legal arguments the publishers plan to make, and also their motivations.

First, the Association of American Publishers’ statement asserts that, “There is no legal basis for according less copyright protection to printed books and articles when portions are made available in digital form rather than bound into hard-copy coursepacks.”  Of course, the District Court made no such differential treatment; it is their inability to see the distinction between the coursepack cases and the situation with library reserves that undermines much of the publishers’ thinking in this area.  At least two cases have found that coursepacks printed for colleges and universities by commercial copy shops do not get much scope for fair use.  But Judge Evans’ ruling that there is more scope for fair use when libraries or professors share digital excerpts has nothing to do with any difference in format; it is simply a recognition that the circumstances that the law tells us are relevant in a fair use determination are different in the two situations.  With Georgia State there was no commercial entity making the copies and no charge leveled for access to them.  None.  That is a huge difference between GSU and the coursepack cases; it is directly, massively relevant to the first fair use factor, which disfavored the copyshops but favors Georgia State.

In other words, Judge Evans did not draw an impermissible distinction, as the plaintiffs allege.  She simply did what the law tells her to do; she analyzed the specific circumstances around the challenged uses.  She did it meticulously and arrived at reasoned conclusions based on the facts before her and the factors outlined in the law.

The AAP goes on to claim that the District Court ignored a “lengthy pattern and practice of widespread infringement” and “ignored the forest for the trees” by conducting its inquiry into each challenged excerpt.  Again, this statement indicates a profound misapprehension of how fair use works.  It is precisely intended to be a careful examination of the circumstances around each challenged use.  And the results of that analysis disprove the claim of a lengthy and widespread pattern of infringement.  Judge Evans found only occasional and scattered instances of infringement.

It is difficult to know how the plaintiff publishers think the Court should have proceeded differently.  How do you discover a pattern of infringement if you don’t examine each specified use to see if it really is infringing?  How do you locate a forest without knowing what a tree look like?  To extend the metaphor, the publishers and the Court do not disagree about whether or not there is a forest, they disagree about what kind of trees make it up; where the publishers see infringing yew trees (a symbol of mourning and loss), the Judge saw, mostly, fair use oaks.

In the conference call with reporters that the plaintiff publishers held, reported in the Chronicle article above, there was a lot of talk about how unhappy the publishers are to have to continue their lawsuit against academic libraries.  They professed an allegiance to the principle of fair use that I find extremely disingenuous — whatever they could mean by fair use in that statement, it is not recognizably the right created by section 107 of the U.S. copyright law — and they once again asserted that the District Court ruling would cripple them financially.  The President of Oxford University Press is quoted as saying that the decision would “cut us off at the knees” because of their “razor thin budgets.”  There are many public facts that disprove this statement, not least of which is the 25% increase in profits OUP reported in 2011 or the 116 million pound “surplus” it reported in 2012.  More importantly, Judge Evans had access to specific sales and profit numbers, and found very clearly that permission income was almost never a significant factor for these publications.  These factual findings of a District Court are reviewed on appeal under the standard that “clear error” must be found to overturn them, so this argument is a loser in court, I am convinced, even while it remains popular in press releases.

In short, what we saw on Monday was more of a tantrum than a legal argument.  The Copyright Clearance Center has made it clear that they will continue to help fund this case on appeal (an appeal is a lot less expensive than the initial trial), so more money from libraries will be used to sue libraries.  All the professions of regret and concern for authors still ring hollow; it is interesting that Sage claims to have consulted “textbook authors” about continuing the suit, yet no textbooks per se were involved in the case and it is not clear that the judge would apply the same analysis to textbooks as she did to the works at issue.  If the publishers had spoken to the authors on my campus who write the books and articles they publish, I am confident they would have heard a different story.  For ordinary academic authors, permission royalties are trivial and not an expected part of the publishing “deal” (which is no deal at all for them).  This is not about protecting authors; it is, as it always has been, a marketing ploy, especially for the CCC, that aims to compel libraries to give an even larger share of their budgets to these publishers, and the groups that are financing them, without getting any new scholarship for that money.

Copyright Issues and Legislation, Libraries

Examining an “essential” copyright

The article has been all over the news media, which is unusual for something about copyright. In my RSS feed from a Google search for copyright issues it has appeared at least a dozen times, based on different newspapers that have run it.

What “it” is, is an article from the Associated Press about copyright and the film preservation efforts at the Library of Congress.  Here, for example, is the article on the website of the San Francisco Chronicle, and here it is again from the Seattle Post-Intelligencer.  The article alternates between talking about the LoC’s film preservation project and about copyright protection for film.  The latter is involved, ostensibly, because Congress added motion pictures to the list of protected subject matter in August of 1912, so the article ran on roughly the 100th anniversary of that legislation.

Here is a key sentence from the article, which contains the quote from which the word “essential” in the headline is taken and also some of the confusion of two issues that concerns me:

“Copyright was essential from the very beginning of the industry,” said Patrick Loughney, chief of the Packard campus, a former Federal Reserve bunker… that has been converted into a state-of-the-art archive.  It is a dual safe-haven, intended to protect both the film’s creators and establish a collection that outlasts a film’s box-office haul.

What strikes me as curious is how these sentences are related.  What, specifically, is intended to be this safe-haven that is referred to — copyright protection, or the underground preservation vault?  It is that apparent confusion (toward the end of the article a little bit of light dawns on the issue) that got me thinking about what role copyright plays in the preservation of film.

As a preliminary matter, it is worth noting two points.

First, although the headline says that copyright protection for film is turning 100, that is the anniversary of the legislation; copyright protection itself does not normally last that long, and many of the films being discussed, or that are stored in the vault, are likely to be out of copyright protection and in the public domain.

Second, the role of copyright, and the 1912 addition of motion pictures to the statute, in the earliest development of the film industry is much more ambiguous than this article suggests.  For one thing, the earliest films were registered for copyright well before Congress acted; they were simply registered as sets of photographs.  Thomas Edison was the first to register a film (of a man sneezing) in this way, in 1894.  Filmmakers were thus able to get copyright protection, if they wanted it, eighteen years before Congress acted.  The Third Circuit Court of Appeals upheld the validity of this type of registration in a lawsuit, brought by Edison, in 1903.

But if copyright protection was available prior to the 1912 legislation, its impact may not have been as great as the quote above suggests.  In his book Hollywood’s Copyright Wars, from which the facts in the previous paragraph are taken, Peter Decherney makes the case that the earliest film executives, who began by suing each other over patents and copyright, usually ending by forming associations and arriving at agreements that were much more important to progress than legal enforcement measures were.  This turn toward forms of self-regulation often was the real move that proved vital to innovation and growth; statutory rights and judicial decisions merely set the boundaries that the industry payers then renegotiated.

Now we come to the central issue — what is the role of copyright protection in preservation?  Toward the end of the article we finally get an indication of why the two things have been tied together this way, when Mr. Loughney is quoted saying that copyright “has a practical function.  The physical depositing … of material creates a national archive that can live on for future generations.”  So copyright supports preservation because of its mandate that registered works be deposited with the Library of Congress; it is not the exclusive rights themselves but this “add on” requirement that seems to be the key.  This may indeed be true, but the registration requirement has never been strictly enforced, and under our current regime of automatic protection, registration and deposit rates are minuscule compared to all that is created.

And, of course, actually preserving the materials that are deposited might well have been easier were it not for copyright protections.  The article notes that many early films have been lost, and specifically mentions that nitrate films were not preserved because the medium was so flammable.  One solution to that problem, of course, would be to make copies of those films to a different, less volatile medium.  But to do that might infringe the exclusive rights of the copyright holder.  This is a dilemma that librarians and archivists encounter all the time; copyright creates uncertainty and risk around reformatting, and thus hinders many preservation efforts.  Old films are lost, even today, not just because they were made on materials that deteriorate, but also because excessive copyright enforcement is too risky to make the needed investment in reformatting.

Copyright has certainly been important to the developing film industry, but in a very ambiguous way, as Decherney shows.  It is quite possible that many films were made that would not have been started but for the assurance of copyright protection.  And the deposit requirement has allowed the LoC to amass an important collection.  But it is also true that many early filmmakers were able to get started in business because they could “dupe” other people’s films (just as the early publishing industry in the US often depended on piracy of British works).  And it is true that the collection the LoC holds might be even more valuable if copyright protections had not, and did not even today, prevent or deter reformatting for preservation.

 

 

Libraries, Scholarly Publishing, Technologies

Dissertations for sale, or, scaring the children, part 2

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When The Chronicle of Higher Education published its “Cautionary Tale” about a dissertation discovered, by its author, to be available for sale on Amazon.com without his knowledge, it was bound to stir up another round of anxiety over how dissertations are distributed in a digital world.

In the particular case, the problem was that ProQuest, which creates the dissertation database once known as Dissertation Abstracts, now offers electronic copies of dissertations through outlets like Amazon.  Authors have the option of preventing this (it is the default) when they submit their dissertations.  To the article’s author, this was an unwelcome discovery.  But two comments should be made about this cautionary tale.  First, ProQuest, and its predecessor UMI, have always sold copies of dissertations; all that has changed is the format and the ease with which they can be found.  Second, the most basic instruction for any author, whether of a dissertation or a best-selling novel, is to read the contract for distribution before you agree to it.

The bigger question is whether or not these sales, and more especially the online distribution of dissertations in open access repositories, which is becoming the norm at many institutions, actually prevent authors from getting their first book published.  The author of the Chronicle piece seems to assume that it will, but such assumptions, without facts, seem to be the real problem.  There are many expressions of fear on this front, and even a few stories of actual rejection which seem to be circulated endlessly.  Fears, of course, are not facts, and students often repeat these fears and demand that universities cater to them  based only on the anxiety of others.  As for the handful of anecdotes, it is hard to know whether the rejection of a book in these stories really was caused by online availability of the dissertation, or by some factor internal to the work itself. To a large degree we are again dealing with FUD – fear, uncertainty and doubt – intended to frighten people.

It is not surprising that publishers would sometimes raise this specter even if they know it is seldom an important issue in actual editorial decisions.  The simple truth is that the academic publishing industry has a vested interest in discouraging any online distribution of scholarship that it does not control.  But it is useful to look at some of the sources behind the anxiety to see what they really say.

First is this statement from the American Historical Association, which actually is quite moderate.  Here is the key paragraph:

While there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation, the division feels that students and their advisers should be aware of the possibility. Editors who had spoken about the topic at a 2011 annual meeting session and had subsequently been interviewed for an article in the Chronicle of Higher Education were divided on whether electronic publication differs significantly from older methods of making theses and dissertations available through interlibrary loan or on microfilm. Some editors stated that they would be more likely to publish a dissertation that had attracted interest online.

This is hardly terrifying stuff; the Professional Division of the AHA goes on to recommend that universities have policies regarding embargoes for online dissertations, and that authors and advisers know what those policies are.  Perfectly sensible, even though it seems to ignore the first clause  in the quoted paragraph: “there is no conclusive evidence that electronic publication can make it more difficult to publish a revised version of a dissertation.”  Two phrases are key in that clause, I think: “more difficult” and “revised version.”

It is difficult to publish a scholarly monograph these days, and the market for books based on dissertations is shrinking all the time.  Is this because of online, open access dissertations?  I don’t think so.  I think it is because library budgets are shrinking, more of the money must go each year simply to maintain journal subscriptions, and dissertation-based books tend to be very specialized and very expensive.  I have never heard a librarian say that she would not buy a book because the dissertation version was in a repository somewhere; cost and the availability of funds are a fully sufficient explanation for the contracting market for revised dissertations.

Yet according to this survey done by some leaders in the field of online dissertations, some publishers do express a greater reluctance to accept a manuscript if there is an online dissertation.  Here I think the issue of revision is key.  Note that many more publishers in the survey say that it is the degree of revision that makes a difference for them, and I believe that the small percentage that said an ETD could be a large factor were answering the question based on a scenario where they were presented with an unrevised, or lightly revised, manuscript.  A much larger percentage, over 40%, either cited the difference between the two documents as a factor or indicated a case-by-case analysis; they recognized that the key factor was revision.

Revision of a dissertation before submission for publication is virtually a sine qua non today, and much more important than online availability (or suppression) of the original dissertation.  Because of the market described above, an unrevised dissertation, which is always directed to the interests of a very narrow group of specialized readers, stands little chance of being accepted, regardless of whether it is also online.  More importantly, there is no evidence, in my opinion, that a publisher would reject a well-revised dissertation that was otherwise marketable simply because an earlier dissertation by the same author and on the same topic was online.  Availability as an ETD is an excuse, or a boogeyman, far more often than it is a real reason for turning away a marketable monograph.

So what is a dissertation author to do?  First, relax, but plan to revise.  Second, take the advice of the AHA and know the policies that will apply to you at your degree-granting institution and that prevail within your discipline.  Third, use embargoes on your work when they really will help, both in ProQuest and at your local campus.  Finally, read what you sign before you sign it.  This last point is a life lesson that all scholarly authors should learn, not just those at the dissertation stage of their careers.

Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Lions and tiger and bears, OA, or, scaring the children, part 1

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Earlier this week I had the delicate task of replying to a researcher who had applied for funding for open access publication fees and telling her that our COPE fund could not be used to support her article.  The reason was that it was to be published in a journal that did not meet two of our basic criteria.  In order to ensure that our limited funds are well-spent, we will only fund article processing fees for journals that are listed in the Directory of Open Access Journals and published by members of the Open Access Scholarly Publishers Association.  These criteria may be imperfect surrogates for quality, but they have served us well in striving to be sure that we support high-quality, sustainable OA publishing efforts.

Because we have these criteria, there was an objective reason for our decision to deny this particular application, since the journal did not meet either of the requirements I just mentioned.  But I felt obligated to say more, so I forwarded the researcher a link to a discussion of whether or not the publisher in question was a “predatory” OA operation.  The concerns were real, although the article did not ultimately decide whether the problems it listed were the result of an awkward start up or intentional deception.  I told the researcher that she might consider a different venue, and I worried about her reply because I had been rather pushy, I thought.

The reply I received was both a relief and a surprise.  The researcher thanked me for my concern, said that she understood the decision about funding, and clearly indicated her intention to proceed with the publication as planned.  Her response got me thinking about the whole notion of predatory open access publishing.  How, I wondered, should libraries especially, when they administer OA funds, think about the predatory problem?

First, I think libraries are right to raise the issue.  We have always had a role in helping students and even faculty evaluate the quality of various publications, and doing so is an obligation when we are making purchase or other funding decisions, since we are obligated to spend carefully the funds our institutions entrust to us.  I really like the warning, couched in a modest and restrained tone, found in this blog post the University of Buffalo Libraries.  We should not be condemning all open access publishing, or otherwise shouting about the predators all around us, but we do need to answer inquiries honestly and spend our monies wisely.

Which brings me to a second reflection.  “Predatory” publishing is not exclusively an open access problem, and the problems included in that over-used phrase actually run the gamut from genuine attempts to defraud people to simple mismanagement.  Before there were OA journals there were journals published in traditional fashion that were merely shills for certain industries or which otherwise had unacknowledged selection criteria that conflicted with scholarly quality.  The victims of these types of journals were unwary libraries, who purchased subscriptions that ultimately ill-served their patrons and wasted scarce resources.

In an online age, criteria that are well-established in libraries for avoiding these predatory toll-access journals now must be shared more widely because researchers may unwittingly spend research funds on equally low-quality OA journals.  But to call this an open access problem is to blind ourselves to its full scope and is, I fear, often motivated more by the desire to bring OA itself into disrepute, to “scare the children,” as I like to call it, than it is by a desire to protect the entire system of scholarly communications.  We should not allow FUD (fear, uncertainty & doubt), which is often spread by institutions that are trying to preserve the problem to which they see themselves as the solution (to paraphrase Clay Shirky), to narrow our vision of a sustainable system of scholarly publishing.  The problem we  should be addressing is predatory publications, OA and subscription-based, and publishing ethics across the board.

One reason I think this point is so important is because of the danger inherent in a wide-spread panic over predatory OA journals.  The first source that alerted me to the potential problems with the publisher I was investigating earlier this week was a version of Jeffrey Beall’s list of predatory Open Access publishers.  In the particular case the concerns expressed there were, I think, fully justified.  But the version of the list I stumbled across (and which I cannot now locate) was, in my opinion, over-inclusive.  It included, for example, the publisher Hindawi.  I note that none of the versions I can find this morning do include that publisher; I hope they have been removed from all such lists.  My own opinion is that Hindawi is a perfectly legitimate publishing operation and it is one with which our researchers publish often and sometimes repeatedly.

As long as Hindawi meets our criteria for COPE funding, and it currently does, I will defer to the judgment of our authors when they choose to publish in those journals.  And I will continued to be afraid that the hue and cry over predatory OA publishing will tar perfectly legitimate operations.  The reason given  for concern over Hindawi on the list I saw was that they publish “too many” journals.  This is a highly subjective criteria, and it is really a legacy from older, print-based publishing.  So I repeat, we  should make our decisions about quality on the basis of neutral criteria that can be applied to any business model and not allow the legitimate concern over predatory practices to become a weapon used against only a single publishing option.

Finally, I think that there is a role here for deference to researchers, who are likely to know best what form of publishing suits their needs.  It is perfectly possible that the advantages of open access publishing or any other particular publishing venue will, in the minds of individual researchers, simply outweigh some of the concerns we might express about a publisher, especially when those concerns are subjective or in dispute.  The speed of research dissemination and the impact advantage that authors get from open access may make it a lot easier to overlook purely administrative problems, which probably plague any publishing enterprise in its first few years.  The authors themselves, who know their disciplines best, of course, and also have the responsibility to manage their own careers, should ultimately decide where they want to publish, as the researcher I conversed with this week did.  We need objective criteria and frank communication about real problems and concerns when we are expending the limit funds of our institutions.  But that is very different from telling researchers that the cannot publish somewhere, which we should never do, in my opinion.  It is also quite different from a panic or a witch-hunt or a FUD-fest, which will not serve anyone well.