Category Archives: Scholarly Publishing

Libraries, Licensing, Scholarly Publishing

LSU v Elsevier – Paying Twice (or More) for Scholarship?

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When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.  

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense.  The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations,  but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do? 

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Licensing, Scholarly Publishing

We’re back! (and so is the GSU fair use e-reserves appeal…)

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Dave Hansen
Dave Hansen, Director of Copyright and Scholarly Communications

After a few months of quiet, I’m happy to say that the Copyright & Scholarly Communication team at Duke is bringing this blog back to life. Since Kevin Smith left to become Dean of Libraries at the University of Kansas, I have stepped in to take over his old post as Director of the Office of Copyright and Scholarly Communications at Duke. If you’re interested in who I am and what I do, you can check out my new Scholars@Duke profile. I plan to use this blog to cover the same types of issues that Kevin did, especially copyright and publishing, as well as to highlight some of the interesting projects happening here at Duke on those same subjects.

I think it’s only appropriate that my first post is about the Georgia State University e-reserves copyright lawsuit. This blog has more or less chronicled this suit since it was filed in 2008. For anyone unfamiliar, the case is about whether it is fair use for GSU professors to make electronic excerpts of books available to students in their courses.  The plaintiffs Cambridge University Press, Oxford University Press and Sage argue that in most cases it is not fair use. So far, the courts have mostly decided in favor of GSU regarding the specific uses made by GSU and its faculty.

Publishers’ Brief on Appeal

Publishers' SECOND appeal is again before the 11th Circuit Court of Appeals
Publishers file opening brief in their SECOND appeal before the 11th Circuit

On Friday the Publishers filed their opening brief on appeal (their second appeal!) before the 11th Circuit Court of Appeals. The brief isn’t a huge development. But, it makes some fascinating, and concerning, fair use arguments that are worth discussing. On fair use the brief basically argues:

  1. The lower court didn’t balance the fair use factors correctly. It argues that the court placed too little weight on the fourth fair use factor (whether GSU’s uses harmed the market for the works).
  2. That the lower court made it too hard for Publishers to show that their markets were in fact harmed.

Market harm is critical for the Publishers because they don’t have much else left to argue about. Based on what the appellate court said on the last appeal, the first factor (educational in-class use) strongly favors GSU; the second factor (nature of the work) tends to favor GSU in many cases, though the appellate court said this factor doesn’t count for much, and the third factor (the amount and substantiality used) also tends to favor GSU in most instances

Balancing the Fair Use Factors

The Publishers make some good introductory points about how courts should weigh the fair use factors. The brief recites case law saying that the factors should be balanced together, that there are “no hard evidentiary presumptions” as to what types of uses may be fair, and that the district court should not take a “rigid” or “mathematical” approach to fair use (something that the district court was chided for the first time around on appeal).  So far, so good.

But then comes their core argument about market harm and fair use balancing, which I think fails. It starts by asserting that the lower court was too mechanical in its approach. The brief seizes on a statement made by the lower court, that it “estimates that the initial, approximate respective weights for the four factors as follows: 25% for factor one, 5% for factor two, 30% for factor three, and 40% for market harm.” (Dist. Ct. Op. at 14).

I agree that assessing the numerical percent value of each factor is somewhat unusual. What’s really strange, though, is that you would think that the Publishers would be happy with a mechanical approach under which market harm is weighed as 40% of the analysis—in other words, almost outcome determinative.

Market Harm Above all Else?

Apparently almost outcome determinative isn’t good enough. In a section of the brief that contrasts starkly with those opening (and mostly accurate) statements of the law about balancing the factors together, Publishers argue that no use can be fair use if there is any market harm:

“This (literally) calculated choice of numerical weights . . . produced findings of fair use even where the court found market harm under factor four that weighed against fair use. Indeed, the court made clear its resistance to granting dispositive significance to factor four by stating that while factor four would be given “additional weight,” factor three was “critical” because it was “at the vortex of the holistic evaluation required by the Court of Appeals’ Opinion.”

Like some of the other positions the Publishers have raised in this case, this approach might make sense 30 years ago. In 1985, the Supreme Court announced that the market harm factor is “undoubtedly the single most important element of fair use.” But, the Supreme Court has since walked back this approach. It stated clearly in 1994 in Campbell v. Acuff-Rose that “all [factors] are to be explored, and the results weighed together, in light of the purposes of copyright.”

In the first GSU appeal, the 11th Circuit recognized that Campbell is controlling:  “This language [from Campbell] appears to be inconsistent with any single factor being deemed the single most important.”  The 11th Circuit reasoned, however, that in this case because “the threat of market substitution is severe, it is appropriate in this instance to afford relatively great weight to the fourth factor in the overall fair use analysis.” In fact, the lower court obeyed that direction. It gave market harm 40% weigh in each determination, more than any other factor. It just declined to make market harm outcome determinative, (worth 51% or more, in other words) which is what the Publishers wish for.

Takeaways for Educational Users

The weight given to market harm—even the difference between 40% and 51%, if you want to try to attach a percent value on it—is critically important for educational users. We now live in a world where books never go out of print (print-on-demand). License services are proliferating, and one can buy permission to do an increasingly broad array of activities, such as text or data mining. If courts accept that even the tiniest lost licensing revenue in those markets constitutes a “harm” that is judged to be determinative in the overall fair use analysis, then the rights of educators to use copyrighted works is diminished significantly. We’ll have to wait and see what the 11th Circuit does, but I hope it sees through this argument and upholds the decision of the lower court. 

Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Scholarly Publishing

Here we go again: latest GSU ruling an odd victory for libraries

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My first thought when I read the new ruling in the Georgia State copyright lawsuit brought by publishers over e-reserves was of one of those informal rules that all law students learn — don’t tick off your judge.  From the first days of the original trial, the arrogant antics of the attorneys representing the publisher plaintiffs — Oxford University Press, Cambridge University Press, and Sage Publishing — clearly put them in a bad light in the Judge Evans’ eyes. Those chickens came home to roost in this latest opinion, especially where the plaintiffs are chided for having filed a declaration about what licenses were available for excerpts back in 2009, even after the Judge told them not to, since that information had not been introduced as evidence in the original trial.  All of that evidence was stricken, and the Judge based her new opinion on the evidence that was before her in that first trial.  I can imagine that the publishers might use that ruling as a basis for yet another appeal, but if they do so, they had better be able to prove that the evidence is genuine and reliable, and to explain why, if it is, they did not produce it at trial back in 2011.

But I have put the cart before the horse; let’s look at the ruling we just received from the District Court.  In case some have lost track, this case was originally decided by a 2012 ruling by Judge Evans that found infringement in only five of 74 challenged excerpts, and awarded court costs and attorney’s fees to GSU as the “prevailing party” in the case.  The publishers appealed that decision to the Eleventh Circuit Court of Appeals, which vacated the trial court holding in 2014, sending the case back to Judge Evans with a set of instructions on how to improve the fair use analysis for these challenged excerpts.  As has been noted many times before, the publishers lost nearly all of the big principles they had wanted to establish in the case; the Court of Appeals refuted most of the publishers’ arguments even as it did what they asked and vacated the first ruling.

Now, using the new fair use analysis directed by the Court of Appeals, Judge Evans has handed the publishers yet another loss.  One wonders how many times they will have to lose this case before they finally learn something about the state of copyright law today.  Still, this loss for the publishers is only the oddest sort of victory for libraries.

The new fair use analysis that Judge Evans uses is carefully designed for situations where the challenged use in not transformative; the non-transformative nature of the use means that the small portions used must be scrutinized very carefully, and it means that the fourth factor — the potential impact of the use on the market for or value of the original — gets extra weight.  It is very important to notice this fact, because it means that this analysis used by Judge Evans will not be applicable in many other situations, especially in academia, where the uses are, unlike with e-reserves, transformative.

Even though both the trial court and the Court of Appeals have held that e-reserves are not transformative, both courts have affirmed that the first fair use factor — the purpose and character of the use — will still favor fair use when that purpose is non-profit and educational.  So throughout this new decision, Judge Evans continues to hold that the first factor always favors fair use.

The analysis of the other factors has changed, however.  For factor two, the nature of the original, Judge Evans does not make a blanket assumption, owing to instructions from the Eleventh Circuit, but looks at the nature of each excerpt.  In most cases, she finds that informational matter is mixed with more individualized scholarly commentary, and the result is that this factor is usually neutral — neither favoring nor disfavoring fair use.  In the few cases where it counts against fair use, it has little impact (the Judge says this factor is only 5% of each decision).

In the same way, factor three now gets a more careful and specific analysis.  The 10% or one chapter rule that Judge Evans used in her first opinion is gone, at the instruction of the Court of Appeals.  Instead, Judge Evans looks at each excerpt and evaluates its appropriateness to the allowable purpose (from factor one) and its potential to substitute for a purchase of the book (market substitution, anticipating factor four).  In many cases, she finds that the excerpts are a very small number of pages and a small percentage of the entire work (so not a market substitute), are are also narrowly tailored to accomplish a specific teaching objective.  In those cases, this factor will favor fair use.

Factor four, which the Judge now believes should constitute 40% of the fair use decision in this particular situation, is where most of the action is in this ruling.  The analysis, the Judge says, is two-fold, looking at both harm to the potential market for the original and harm to the value of the work, which means looking at the importance of the licensing market.  About this latter source of potential value, the Judge says that she must decide “how much this particular revenue source contributed to the value of the copyright in the work, noting that where there is no significant demand for excerpts, the likelihood of repetitive unpaid use is diminished” (p. 9).  The result of this inquiry is that a lot of financial information about each book — its sales over time and the amount of revenue derived from the permissions market — is very important in the fourth factor analysis.  The charts for many of the books that reflect this information make for fascinating reading, and contain information I suspect the publishers would rather not have made public.  This is where it becomes most difficult for libraries to apply the analysis that Judge Evans is using, because the Court has access to information, and time to analyze it, that is not available to libraries as they consider e-reserve requests.  Still, I think it is important to note that the standard the Judge is using in this evaluation is pretty high and it is focused on value to the authors and to users:

[W]e must determine how much of that value (the value of the work to its author and the potential buyers) the implied licensee-fair users can capture before the value of the remaining market is so diminished that it no longer makes economic sense for the author — or a subsequent holder of the copyright — to propagate the work in the first place (page 8, quoting the 11th Circuit).

In other words, this analysis is opening up a significant space in the idea of market harm, which permits potential fair users to diminish the value of the work in question to some degree, as long as that reduction in value is not so steep as to discourage writing and publishing these academic books.  Licensing, in this analysis, is the remedy only for that kind of steep loss of value; it is not a mere right of the copyright holder to obtain all the value from the work that is possible.

Judge Evans applied this complex formula for fair use to 48 challenged excerpts.  It was only 48 because for 26 of the ones discussed in her original ruling she found that there had been no prima facie case for copyright infringement made out, either because the publishers could not show they held the copyright or because there was no evidence that any students had used the excerpt.  This part of the ruling was not challenged, so only these 48 fair use rulings had to be redone.  Bottom line is that she found fair use for 41 of the 48, and infringement only in seven cases.  As Brandon Butler points out in his discussion of the ruling, even that might overestimate the infringement, since it appears that the summary in the decision may list at least some instances of infringement that were actually found, in the specific analysis, to be fair use.

So this ruling, like each ruling in the case, is clearly a disaster for the plaintiff publishers.  Once again it establishes that there is significant space for fair use in higher education, even when that use is not transformative.  Nevertheless, it is a difficult victory for libraries, in the sense that the analysis it uses is not one we can replicate; we simply do not have access to the extensive data about revenue, of which Judge Evans makes such complex use.  So what can libraries do, now that we have this additional “guidance” about e-reserves from the courts?  I think there are two fundamental takeaways.

First, we should continue to do what we have been doing — making careful fair use decisions and relying on those decisions when we feel the use is fair.  While we do not have much of the information used by the Court in this latest ruling, we still do have the security provided by section 504 (c)3 of the copyright law, which tells us that if we make good faith fair use decisions we, as employees of non-profit educational institutions or libraries, are not subject to statutory damages.  This greatly lowers our risk, and adds to the disincentive to sue academic libraries that must surely stem from the GSU experience.  All we can do, then, is to continue to think carefully about each instance of fair use, and make responsible decisions.  We still have some rules of thumb, and also some places where we will need to think in a more granular way.  But nothing in these rulings need fundamentally upset good, responsible library practice.

The second takeaway from this decision is that we should resort to paying for licenses only very rarely, and when there is no other alternative.  The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries.  To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt.  Can we link to an already licensed version?  Can we shorten the excerpt?  Buying a separate license should be a last resort.  Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.

[personal note — this will certainly be my last word here at the Scholarly Communications @ Duke site, and it is fitting that it deal with the Georgia State case, about which this site has seen so much commentary.  For the sake of continuing this conversation and including more discussants, I am also going to post this piece on the new group blog of which I am a part, IO: In the Open.  Apologies if the repetition is annoying to anyone.]

Copyright Issues and Legislation, Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Moving into the open

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Since it was announced that I will move shortly to the University of Kansas, several people have asked me if I intend to continue blogging, and have kindly encouraged me to do so.  This blog, of course, will remain one of the communication outlets for the Scholarly Communications program at Duke, and my Duke colleagues Paolo Mangiafico and Haley Walton, as well as others, will fill the space, I am sure, with interesting and worthwhile reads.

I do intend to keep blogging, however, at a different site and in a different format.  Over the past few weeks, some colleagues and I have assembled a great group of people interested in scholarship, publishing and libraries, and I am excited to announce a new, collective blog called IO: In the Open.

On this new site, this group of people will be writing about how scholarship and scholarly publishing is changing and can change in ways that better adapt to new technologies, needs, and economics:

Amy Buckland
Institutional Repository Manager, University of Chicago Library

William Cross
Director, Copyright & Digital Scholarship, North Carolina State University Libraries

Ellen Finnie
Head, Scholarly Communications & Collection Strategy, MIT Libraries

Patricia Hswe
Digital Content Strategist, Penn State University Library

Lisa Macklin
Director, Scholarly Communications Office, Emory University Library

John Sherer
Director, University of North Carolina Press

Sarah Shreeves
Associate Dean for Digital Strategies, University of Miami Libraries

Kevin Smith
Dean of Libraries, University of Kansas

Claire Stewart
Associate University Librarian for Research & Learning, University of Minnesota

Shan Sutton
Vice Dean, University of Arizona Libraries

The title of this new blog should not surprise folks.  It is born out of the conviction that scholarship should be open because…

Scholarship in the open is better business – it provides a clearer perspective on what it actually costs to produce articles, books and other scholarly output.

Scholarship in the open is better for libraries – it connects us more directly with our researchers and with the life entire life cycle of research. It improves our ability to disseminate the outcomes of research and get the materials they need into the hands of students, teachers and others quickly and efficiently.

Scholarship in the open pushes us towards better copyright laws — it encourages us to think about how copyright could better align with author incentives and reminds us that, because the reasons creators create are so various, the law needs more flexibility than it currently has.

Scholarship in the open is better scholarship – it can be read and evaluated by a much larger and more varied audience. It takes the initial process of evaluating works of scholarship out of the hands of a small elite, some of whom are ill-prepared for the task, and offers the potential for more diverse ways of measuring impact and providing more complete information for the hiring, tenure and promotion process.

Our first blog post at IO: In the Open, by Ellen Finnie of MIT, will focus on the vital issue of how we spend our money in libraries, and how we can think in broader terms about the value of scholarly resources.  Ellen’s post, with its interesting analogy to food-supply chains, will be published on IO within the next day or so.

I hope that the people who have followed Scholarly Communications @ Duke so faithfully over the years will also subscribe to IO: In the Open.  We believe you will find a interesting, committed and diverse set of voices there that will help shape the discussion of these issues in years to come.

If you follow this blog on Twitter (Twitter handle @klsmith4906), that account will also tweet out new post from IO: In the Open.  Or, you can follow our new IO Twitter account:  https://twitter.com/IOIntheOpen.  You can also subscribe directly to the IO: In the Open blog posts by using the widget on the side of the IO page.

Copyright Issues and Legislation, Open Access and Institutional Repositories, Scholarly Publishing

Some radical thoughts about Sci-Hub

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Radical, as I like to remind folks, means to get to the root of an issue (same derivation as radish).  So when I say I am offering some radical thoughts about Sci-Hub and the controversy it has generated, I mean that I hope to use the discussion to ask some very basic, “at the roots,” questions about copyright, not that I intend to shock anyone.

My radical thoughts have been prompted by the many very conventional reactions to stories about Sci-Hub, which collects academic papers using .edu proxies and makes them available without charge and in disregard of the rules imposed on distribution by the copyright holders.  These reactions have followed two predictable trajectories, with one group calling what the site and its founder Alexandra Elbakyan are doing civil disobedience.  Indeed, Ms. Elbakyan herself has apparently cited Article 27 of the U.N. Declaration on Human Rights as a justification of her project, which now host nearly 50 million articles.  On the other side of the debate are those who are shocked by this disregard of the law, and especially by the apparent willingness of some libraries or librarians to use Sci-Hub to obtain research materials for their patrons.  All this debate, by the way, has been provoked by a lawsuit against Sci-Hub brought by publishing giant Elsevier, a move which has predictably increased attention to the site.

One thing that has been particularly disturbing to me about the various statements expressing outrage over Sci-Hub is how focused they are on the values and opportunities of the developed world.  One comment I saw pleaded with librarians to respect the law and not to use Sci-Hub “just to save money.”  Such moralizing misses a couple of basic points, I think.  The first is that Sci-Hub seems directed at, and is certainly mostly used by, researchers and students in the developing world, where it is not merely a matter of “saving some money,” it is a question of finding any way at all to get access to scientific and medical research.  We tend to forget that a $30 paywall, while a mere inconvenience to those of us in the U.S. or Europe, can be an insurmountable roadblock for someone in Cambodia or Malawi who is trying to learn about a medical condition.

Another point about the righteous defense of “the law” in some of these comments is that laws come in different forms and carry different kinds of moral authority.  Lawyers distinguish, for example, between illegal acts that are “wrong in themselves” (malum in se) and those that are only “wrong because prohibited,” or malum prohibitum. ( there is a discussion of this distinction, for those with a sense of humor, in the movie Legally Blonde).  Copyright infringement is, of course, the latter; a violation of the law but not of any moral imperative.  Such a law merely enshrines a decision about the distribution of resources, and it can be changed without causing the collapse of human society.  Precisely the kind of situation where acts of civil disobedience to provoke discussion and change are most supportable.

This is where the radicalism comes in, when we look at what copyright law does, how it has been used over time, and what Sci-Hub is actually doing.  These questions were raised for me by the fascinating comment by Thomas Munro on this blog post, which is itself defending the idea of Sci-Hub as civil disobedience.  Dr Munro’s comment, the first that follows the post, points out that Sci-Hub is doing what U.S. publishers did for a long time — she is refusing to recognize copyrights granted by other countries.  Dr. Munro writes as follows:

What Elbakyan is doing – ignoring foreign copyright – was official US government policy for more than a century. As a result, books were much cheaper than in Europe and literacy skyrocketed. When the US finally caved, in 1888, the editors of ‘Scientific American’ thundered that “The extension of copyright monopoly to foreigners will enable them to draw millions out of the country” and that it would turn US customs officers into “pimps and ferrets for these foreigners”.
As one Senator said in voting against the bill: “An international copyright is simply a monopoly … what is known as protection, or taxing the people to make a few persons rich … It seems to me that there can be no excuse for carrying this restriction upon human knowledge.”

That the publishing industry thrived in the U.S. by ignoring copyright is a well-known but little discussed aspect of our history with scholarly communication.  Perhaps those early American publishers did not see themselves as practicing civil disobedience; they may have just been trying to maximize profits.  But their willingness to ignore foreign copyrights when it served what they believed was a more important purpose really does call us to the root of the matter.  Copyright law is an instrumentality, not a good in itself.  It’s role in our legal system is to encourage creativity and the production of knowledge.  When it ceases to do that it deserves to be challenged and changed.

I believe that copyright has a continuing role to play in the academy and in the reform of scholarly communications.  But we do no favors to that role when we treat copyright law as enshrined and inviolable,  as if it had been decreed from Mt. Sinai.  Instead we should focus on what the law is intended to accomplish, where and why it fails in its purpose, and how we can make it more adaptable for the digital age.  One key to a clearer assessment of copyright law is to know its history a little better, and in his blog comment Dr. Munro also offered us a pointer for that task —  a citation to a doctoral dissertation, now freely available an e-book:

Eric Anderson. (2010). Pimps and Ferrets: Copyright and Culture in the United States, 1831-1891.  http://archive.org/details/PimpsAndFerretsCopyrightAndCultureInTheUnitedStates1831-1891

I haven’t read Anderson’s book yet, but I am anticipating a more detailed and nuanced view of how copyright has been used and abused through the vicissitudes of American history.

Authors' Rights, Libraries, Open Access and Institutional Repositories, Scholarly Publishing

Should you #DeleteAcademiaEdu?

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

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

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

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

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

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

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

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

(If I remember correctly, it was John Wilbanks)

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

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

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

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

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

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

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

——

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

Libraries, Scholarly Publishing, Technologies, Uncategorized

Rebels in the Campus Bookstore

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Open Access and Institutional Repositories, Open Access topics, Scholarly Publishing

Open Access at the tipping point

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Open Access Day bookmark used under CC-BY license from http://www.openaccessweek.org/page/englishhigh-resolution-1[ guest post by Paolo Mangiafico ]

As readers of this blog almost certainly know, this week was Open Access Week, and it’s been heartening to see all of the stories about how open access is creating new opportunities for scholarship, and transforming scholarly communication.

It’s also been interesting to see organizations that one might not think of as being open access proponents proclaiming their OA bona fides this week. On Tuesday this press release from Nature came across my Twitter feed. I shared it with my colleagues Kevin and Haley, joking that our job was done and we could go home, now that even in Nature over 60% of published research articles were open access under Creative Commons licenses.

Even though Nature neglects to mention in this release that they are bringing in a lot of money from open access through high article processing charges (they aren’t doing this just to be nice) I still think it’s an important milestone because it shows that open access is becoming the norm, even in mainstream, high visibility journals. I’m optimistic that this is another indicator that we’re on our way to some kind of tipping point for open access, where other effects will come into play.

One of the statistics given in the press release is that the percentage of authors choosing CC-BY licenses in Nature Publishing Group’s open access journals rose from 26% in 2014 to 96% in September 2015. Just last year, a study by Taylor & Francis indicated that, when asked (or at least when asked with the leading questions in the T&F study), authors were more likely to choose other CC variants, yet in Nature open access journals the choice of CC-BY is now nearly unanimous. Maybe “choice” is too strong a word – they appear to have achieved this primarily by setting CC-BY as the default. Just as in the past when signing over all your rights to a publisher was the default (and, unfortunately, in many journals still is), it seems that few authors realize they can make a change, or see a strong reason to do so. What this signals is the power of setting a default.

When we were working toward an open access policy for Duke University faculty in 2010, we talked about setting the default to open. As we discussed the proposed open access policy with Duke faculty, we never called it a mandate, and we haven’t treated it as a mandate, in that the policy doesn’t force anyone to do something they are disinclined to do. But absent any expressed desire to the contrary (via an opt out) the policy enabled the faculty and the University to make as much scholarship produced at Duke be as widely available as possible. We approached the policy as a default position, and built services to make it easy for Duke authors to make their work open access via an institutional repository and have it appear on their University and departmental profile pages, so there are few reasons now not to do it. It will still take time, but I think this “green” open access option is something authors will increasingly be aware of and see as a natural and easy step in their publishing process. They’ll see open access links showing up on their colleagues’ profiles, being included in syllabi and getting cited by new audiences around the world, and linked from news stories, for example, and word of mouth will tell them that it’s really easy to get that for themselves too.

What makes me optimistic about the figures in the Nature press release is that they point to an environment where even in high visibility journals open access is no longer that thing only your activist colleague does, but is something that many people are doing as a matter of course. And as the percentage of authors making their work open access grows, suddenly various decision-making heuristics and biases start to tip in the other direction. Pretty soon the outlier will be the scholar whose work is not openly available, either via “green” repositories or “gold” open access journals, and I think momentum toward almost universal OA will increase.

Our work isn’t done, of course. Even with open access as a default, the next challenge will be to manage the costs. So far the shift to OA has mostly been an additional cost, and the big publishers who made big profits before are continuing to make big profits now via these new models. Even as OA becomes prevalent, and scholars see it as the norm, we’ll still have to work hard to find ways to exert downward pressure on author processing charges and other publishing costs, so that open access doesn’t just become another profit center that exploits scholarly authors and their funders and institutions. We need to do better to surface these costs, and to put in place mechanisms and perhaps shift to supporting other publishers and other models that will keep costs down.

But for now let’s call this a victory. Recognizing there’s still a lot to do, let’s pop the champagne bottle, celebrate open access week, and then get back to work on the next round of creating a better scholarly communication ecosystem.

 

Authors' Rights, Copyright Issues and Legislation, Licensing, Scholarly Publishing

What happens when there is no publication agreement?

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Scholarly communication discussions and debates usually focus, quite obviously, on the terms of publication agreements and the licenses those agreements often give back to authors to use their own work in limited and specific ways.  This is such a common situation that it is hard to realize that it is not universal for scholarly authors.  But recently it has come to my attention that some authors actually never sign any agreement at all with their publishers, and in one situation that I will explain in a moment, that led to a dispute with the publisher about whether or not the author could place her article in an institutional repository.  The issue, broadly speaking, is when an implied license can be formed and what such licenses might permit.

In a couple of previous posts, I have discussed the idea of implied licenses: licenses that are formed without an explicit signature, usually because someone takes an action in response to a contractual offer, and the action is clear enough to manifest acceptance of that offer.  One of the most common implied licenses that we encounter underlies the transaction every time we open a web page.  Our browsers make a copy of the web page code, of course, and that copy implicates copyright.  But our courts have held that when someone makes a web page accessible, they are offering an implied license that authorizes the copying necessary to view that webpage.  No need to contact the rights holder each time you want to view the page, and no cause of action for infringement based simply on the fact that someone viewed a page and therefore copied the code, temporarily, in their browser cache.

It is important to recognize that such licenses are quite limited.  An implied license can, at best, be relied upon when doing the obvious acts that must have been anticipated by the offeror, such as viewing a web page.  An implied license would not, for example, authorize copying images from that website into a presentation or brochure; that would be well beyond the scope of an license implied by merely making the site available.  For those sorts of activities, either permission (an explicit license) or an exception in the copyright law would be needed.

So how might implied licensing help us untangle the situation where an author has submitted her work to a journal, and the journal has published it without obtaining an explicit transfer of right or a license?  As I said, this is a reversal of the normal situation, and it caught me by surprise.  But I have heard of it now from three different authors, all publishing in small, specialized journals in the humanities or social sciences.

The way the question came to me most recently was from an author who had published in a small journal and later asked, because she had no documentation that answered the question, if she could deposit her article in an open repository.  The publisher told her that she could do so only after obtaining permission from the Copyright Clearance Center, and she came to me, through a colleague, asking how the publisher could insist on her getting permission if she had not signed a transfer document.  Could the publisher, she asked, claim that the transfer had taken place through some kind of implied contract?

The answer here is clearly no; the copyright law says explicitly, in section 204, that “A transfer of copyright ownership… is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.”  So an implied transfer of rights is impossible; all that can be conveyed implicitly is a non-exclusive license (as in the web site example).

In the case of my author with no publication agreement, she remains the copyright holder, whatever the publisher may think.  At best, she has given the publisher a non-exclusive license, by implication from her act of submitting the article, to publish and distribute it in the journal. This is not really all that unusual. I have written opinion pieces for several newspapers in the past and never signed a copyright transfer; the pressure of daily publication apparently leads newspapers to rely on this kind of implied license quite frequently.  But it is unusual in academia, and requires some unpacking.  No transfer of copyright could have occurred by implication, so the rights remain with the author, who is free to do whatever she likes with the article and to authorize others to do things as well.  The publisher probably does have an implied license for publication, but that license is non-exclusive and quite limited.

As we worked through this situation, three unanswered questions occurred to me, and I will close by offering them for consideration:

  1. Are authors always correct when they tell us they did not sign a publication agreement?  Sometimes an agreement may have been forgotten amidst all the paperwork of academic life, or the agreement might have been online, a “click-through” contract at the point of submission.  We need to probe these possibilities when confronted with the claim that no agreement was signed, but those are very delicate conversations to have.
  2. Returning for a moment to the possibility of a click-through agreement that the author could have forgotten, we might also ask if this type of arrangement, increasingly common among academic publishers, are really valid to transfer copyright.  I am well aware that courts are becoming quite liberal in accepting online signatures and the like, but is there a limit?  Where there is a statute that explicitly requires a signed writing for a specified effect, as the Title 17 does for assignment of copyright, could an author challenge the sufficiency of a (non-negotiable) click-through agreement?  I expect that this issue will eventually come before a court (if any readers who know of such cases, please add the information in the comments), and I will be very interested in that discussion.
  3. Finally, what do we make of the journal’s claim, in the situation I was asked about, that the author must purchase permission to use her own work from the Copyright Clearance Center?  If there was no transfer of rights, the journal has no right to make such a demand and the CCC has no right to sell a license.  This is one more situation where it seems that the CCC is sometimes used to sell rights that are not actually held by the putative licensors, and it renews my concern about whether, and when, we actually are getting value for the money we spend on licensing.
Copyright in the Classroom, Copyright Issues and Legislation, Fair Use, Scholarly Publishing

Can this gulf be bridged?

Litigants in court cases often disagree sharply about the law and its application to the facts, so it is probably not a surprise that the briefs filed in the District Court’s re-examination of its ruling in the Georgia State copyright infringement trial should see the issues in such starkly different terms.

If you read the publishers’ brief, the 11th Circuit decision that sent the case back to the District Court changed everything, and every one of those 70 excerpts found to be fair use at trial now must be labeled infringement.  This is absurd, of course, and I don’t actually believe that the publishers expect, or even hope, to win the point.  They want a new ruling that they can appeal.  In my opinion the publisher strategy has now shifted from an effort to “win” the case, as they understand what winning would mean, to a determination to keep it going, in order to profit from ongoing uncertainty in the academic community (and, possibly, to spend so much money that GSU is forced to give up).

On the other hand, the brief from Georgia State, filed last Friday, argues that all 70 of those challenged excerpts are still fair use.  It seems likely that the actual outcome will be somewhere in the middle, and, to be fair to them, GSU does recognize this, by making a concession the publishers never make.  For a number of excerpts where a digital license was shown to be available at the time of the trial, GSU argues that the available licenses were not “reasonable” because they force students to pay based on what they are getting access to, whether or not the specific excerpt is ever actually used.  This is an interesting argument, tracking a long-standing complaint in academic libraries.  If the court accepts it, it would dramatically restructure the licensing market.  But GSU also seems to recognize that this is a stretch, and ends several of its analyses of specific excerpts by saying that the specific use “should be found to be fair if the Court finds the licensing scheme unreasonable, and unfair if the Court finds the licensing scheme reasonable.”  So it seems GSU is prepared for what I believe is the most likely outcome of this reconsideration on remand — a split between fair uses and ones that are not fair that is different than the original finding — probably with some more instances of infringement — but still a “split decision.”

The availability of licenses is one of the interesting issues in these briefs.  The publisher plaintiffs now argue that licenses were available, back in 2009, for those excerpts where the judge said no licenses were “reasonably available.”  They are continuing to try to introduce new evidence to this effect; which is something GSU vigorously opposes.  But those of us who have been involved in e-reserves for a while remember clearly that such licenses were not available at all through the CCC from Cambridge University Press and only occasionally from Oxford.  So what is this new evidence (which the publishers’ brief says was not offered before because they were so surprised that it was being requested)?  It is an  affidavit from a VP at the CCC, and my best guess is that it would argue that licenses were “reasonably available” because it was possible, through the CCC system, to send a direct request to the publisher in those instances where standard licenses for digital excerpts were not offered.  GSU argues that the evidence gathering phase of the case is over, a ruling about licenses has been made and affirmed by the Court of Appeals, and the issue settled.  A lot will depend on how Judge Evans views this issue; so far she has ruled against admitting new evidence.

Another controversy, about which I wrote before, involves whose incentive is at stake.  The Court of Appeals wrote a lengthy discussion of the incentive for authors to write, and its importance for the fundamental purpose of copyright.  To this they appended an odd sentence that says they are “primarily concerned… with [publisher’s] incentive to publish.”  The publishers, of course, hang a lot of weigh on this phrase, and take it out of context to do so.  GSU, on their side, make a rather forced argument intended to limit the impact of the sentence.  Neither side can admit what I believe is the truth here: that that one sentence was inserted into an opinion where it does not fit because doing so was a condition of the dissenting judge for keeping his opinion as a “special concurrence” rather than the dissent it really was.  If I am right, this compromise served the publishers well, since they can now cite the phrase from the actual opinion of the Court; it is seldom useful to cite a dissent, after all.  So the publishers quote this phrase repeatedly and use it to argue that all of the factors really collapse into the fourth factor, and that any impact at all, no matter how small, on their markets or potential markets effectively eliminates fair use.  Authors, and the reasons that academic authors write books and articles, do not appear in the publishers’ analysis, as, indeed, they could not if the argument for publisher hegemony over scholarship is to be maintained.

GSU, as we have already seen, takes a more balanced approach.  For the first factor, they discount the publishers’ attempt to make “market substitution” a touchstone even at that point in the analysis, and focus instead on the 11th Circuit’s affirmation that non-profit educational use favors fair use even when transformation is not found.  The GSU brief fleshes this out nicely by discussing the purpose of copyright in relationship to scholarship and teaching.  On the second factor, GSU discusses author incentives directly, which in my opinion is the core of the second factor, even though courts seldom recognize this.  GSU also points out that the publishers have ignored the 11th Circuit’s instruction, both here and in the third factor analysis, to apply a case-by-case inquiry to those factors; instead, the publishers assert that since every book contains some authorial opinion, the second factor always disfavors fair use, and that no amount is small enough to overcome the possibility of “market substitution.”  For their part, GSU introduces, albeit briefly, a discussion of the content of each excerpt (they are often surveys or summaries of research) for the discussion of factor two, and of the reason the specific amount was assigned, in regard to factor three.

As I said, these differences in approach lead to wildly different conclusions.  Consider these paragraphs by which each side sums up its fair use analysis for each of the excerpts at issue:

The publishers end nearly every discussion of a specific passage with these words — “On remand, the Court should find no fair use as to this work because: (1) factor one favors fair use only slightly given the nontransformativeness of the use; (2) factor two favors Plaintiffs, given the evaluative/analytical nature of the material copied; (3) factor three favors Plaintiffs because even assuming narrow tailoring to Professor _____________’s pedagogical purpose, it is counterbalanced by the threat of market substitution, especially in light of the repeated use; and (4) factor four “strongly favors Plaintiffs,” and is entitled to “relatively great weight,” which tips the balance as to this work decidedly against fair use. ”

On the other side, GSU closes many discussions (although there is more diversity in their analysis and their summations than in the publishers’) this way — “Given the teaching purpose of the use, the nature of the work and the decidedly small amount used, the fact that this use did not supplant sales of the work, and the lack of digital licensing, the use of this narrowly tailored excerpt constituted fair use.”

These are starkly contrasting visions of what is happening with these excerpts and with electronic reserves, as practiced at a great many universities, as a whole.  It will be interesting, to say the least, to see how Judge Evans decides between such divergent views.