©ollectanea

I got a bit of a shock yesterday, right about closing time (of course). I got an email message forwarding a short essay by Duke University Law School's James Boyle, The inefficiencies of freedom. I've read many works by Boyle and always find his analysis to be thoughtful and thought-provoking. He's a strong defender of the public domain and I must admit that I generally agree with his opinion that the balance embodied in the copyright act has tipped too far towards the interests of copyright owners. As a result, I was stunned to see that he impliedly labeled as irresponsible large universities like mine that might consider including among the many sources we use to provide legal access to educational materials CCC's new academic license (a form of blanket license, as opposed to a transactional license based on individual works used). Somehow this license will sweep away all of fair use, as though one couldn't thoughtfully conclude that paying for permission was in many cases the right thing to do because a good part of what we do is not fair use. He easily equated fair use for creative uses (parody, criticism, commentary) with fair use for the massive duplication of works created, in many cases, just for our higher education market. I'll address that distinction in more detail below.

But next week I am going to have to go though his piece, sentence by sentence, in order to explain to my client why I don't believe it's irresponsible to consider, among the millions of dollars worth of databases we subscribe to, the tens (maybe hundreds) of thousands of dollars worth of electronic books we provide access to, and the tens of thousands of dollars in transactional license fees we pay for permission to duplicate works beyond what we consider fair, adding a payment to the CCC for, in time, pretty much the same works we license transactionally now. If anyone thinks we can turn back the clock on this transition to new models of content distribution and use, I respectfully disagree.

We license databases in part so that our faculty can provide access to their contents to students in connection with class assignments. We license ebooks in part for the same reason. We pay permissions expressly for the same reason. We do this because everything we do is not fair use, not in my book anyway. I agree that some part of our duplication and distribution of others' works is likely fair use, and we have our policy that describes what that part is. But it's not all fair use.

Because I do not believe everything we do is fair use, as an advisor to my client, I can't responsibly advocate that we avoid paying permissions when our uses exceed what we have determined is fair use, not where there is such a mature, efficient market for licensed uses provided expressly for higher education. As much as we may dislike the fact that the market for permissions and licensed works has been held numerous times to negatively affect the exercise of fair use, that is how the cases involving systematic duplication and distribution have gone. Further, I don't believe our not making a profit on these copies will completely flip the results of those types of cases.

Boyle doesn't represent a university as its copyright counsel. I'm pretty sure he'd insist his was not legal advice if asked directly. If it is not legal advice to a client who's counting on him to give his best estimate of the risk of a course of action, what is it? It strikes me as an emotional plea more than an intellectual argument.

Boyle is singling out, as incompatible with fair use, this particular way of paying for uses we make of others' works. He's afraid that if your university just writes a check to CCC for, let's say, $100,000, so that all the works that are covered by the license (the "repertoire") can be used in the typical ways we use such works in connection with classroom assignments without having to report how many copies were made of which particular works (that is, efficiently), it becomes easy to ignore the question of whether a particular use is a fair use. Who cares whether it's fair use or not? And Boyles' concern is that if we don't care about fair use here, fair use will disappear altogether. Sounds logical, except that fair use is not a monolithic all or nothing proposition.

The fair use test comes out differently depending on the facts about each use. His argument is not that different from saying that if we don't rely on fair use to copy an entire book, we'll lose the right to quote a single line from a book. Those two things are qualitatively, not just quantitatively, different. Creative uses and duplicative, iterative, plain old copying and distributing uses are very different and the courts have consistently recognized that. The kinds of uses that might be refused by the copyright owner, those where we most need to rely on fair use, creative, critical, scholarly uses, are qualitatively different from plain old copying. The recent "Grateful Dead" case illustrated this kind of discrimination quite nicely. Even in the face of evidence of a market for permission to do precisely what the defendant wanted to do, the court upheld fair use for a creative purpose. On the other hand, we see cases where there's massive copying and distribution, but *no* viable market for permission (the Google/Perfect 10 case), and even where profit is involved, the court upheld fair use. These cases say to me that creative uses have a strong claim to fair use; even duplicative uses without a market for permission have a strong claim to fair use. But duplicative uses where there is a functional, efficient market for permission are not enjoying the same strong claim in the courts. I don't think the courts are going to begin any time soon to paint with the broad strokes that Boyle fears.

I too believe that we have to draw a line in the sand about fair use. For example, I greatly admire the effort that has been made to address the "permission culture" developed in the documentary film industry and think that kind of effort should be made in industries that rely on the use of images, such as art history publishing. I just don't agree with Boyle about which side of the line our systematic, massive copying and distribution of classroom materials falls on. In theory, maybe some time in the past, it all, or some large part of it, fell within fair use. But with today's markets for licensing and permission, and courts that are all over that concept when it comes to this kind of use, I have come to believe that that time has passed. There are cases where I still feel we reasonably rely on fair use for classroom materials, but they are a small percentage of all our uses.

I don't think Duke University is asking Boyle to advise it about liability. But even if Boyle were Duke's copyright counsel, Duke will base its decision about what to do on many things in addition to its fear of, or fearlessness about, liability. It might, if it wants to, consider whether it believes that all fair uses will be lost if an efficient market for permission to systematically make and distribute copies of classroom materials further develops. I would hesitate to call Duke's decision irresponsible if it decides it doesn't believe that.

What do you think?

I wanted to provide a heads up to readers of our blog that I'm going to move the Copyright Crash Course to the University of Texas at Austin's Library Website later this summer. I haven't been able to effectively work on it since leaving the Office of General Counsel, and the entire University of Texas System Website is undergoing a redesign this summer, so it seems like a good time to make a transition.

If you have ever used the Crash Course and have any suggestions, I would very much appreciate hearing from you. The update I plan involves a complete reorganization and a shift in emphasis more towards scholars and graduate students, including more information about scholarly publishing and all that's going on in the world of digital networked communication. The information for librarians will be consolidated and updated too.

I will archive the existing site at some point, but will not want it to be crawled. Since attending the School of Information, I've acquired tremendous awe for the challenge of archiving born digital materials.

I'll formally announce the move after I have the new url. I won't be able to do the redesign before announcing the move, however, so it will be in its current form at the new location probably for the rest of the summer. That means that there is lots of time to work on changes. Again, if anyone has suggestions, I would love to hear from you, either here, or directly.

I read a press release on the Liblicense listserve this morning from Wiley-Blackwell announcing a new series of journals: "Wiley-Blackwell Launches Review Journals in Social Sciences and Humanities -- Cutting-edge functionality added to Compass journals," the title read. I went to visit the site (Compass Journals and glimpsed the future of publishing in a world of open access (OA). Many people still vigorously debate whether OA will result at some point in library cancellations of journal subscriptions. Theoretically, if all journal articles are freely available on the Web, why would a library subscribe to a database containing them? Sounds rational enough, enough to cause any thoughtful publisher to 1) resist OA or 2) accept OA and find a way to build a business on its back with customers you already have ...

Publishers are doing both. In addressing their admittedly different but pretty much parallel challenges to copyright control, so is Hollywood (see Lawrence Lessig's OpEd piece in the Washington Post. At last, so it the music biz.

I don't believe that resistance will thwart OA (or remixing, or p2p file sharing). OA has such obvious advantages for the "progress of science and the useful arts" to borrow a line from the Constitution. Nevertheless, resistance slows it down long enough for the new business models to start to take shape. Far from saving libraries money, however, OA is going to be a gold mine for publishers who can offer brave new services built on the treasure trove of high-value articles that are going to be out there free for the taking.

Is this a bad thing? Certainly not. It's the American Way (at least), and libraries will buy the services (rent the services actually), and prices will continue to spiral like they always have because that too is the American Way. If you are not growing (profits) you are dying.

Debate about this seems academic at this point. While I'm not that concerned about the future of Hollywood or the music biz, I do care deeply about the future of scholarly publishing and I applaud those at the helm of our University Presses who spend as much of their time as possible concentrating on new business models, not just debating whether OA will cause subscription cancellations (or whatever else it might cause). We have to figure out, like Wiley-Blackwell (and Lucasfilm and EMS in their worlds), what we can do to take advantage of this new OA, socially networked world of digital scholarship, either as businesses, or as more integrated parts of the institutional framework -- whichever works.

Peter Brantley, director of the Digital Library Federation, posts at his personal blog, shimenawa, but recently has begun posting at O'Reilly Radar. Today he posted, "Moving Images: Digitization for Access," which I found quite interesting. The group he describes, Lot 49, challenges many current practices in archive and preservation culture, some very, very old, some very new. That Lot 49 could actually proactively change these practices to achieve a public good seems a long shot, but one never knows unless one tries.

The group "accept[s] as a key principle that access is key to the survival of archives, and digitization the best enabler of access." Brantley goes on to summarize seven other principles that will guide Lot 49's efforts:

1. Public access online to publicly owned resources will remain free.
2. Partnerships shall support the joint goals of increased access and enhanced preservation of archival materials.
3. Our partnerships will be non-exclusive.
4. Our partners will provide our organizations -- without charge -- a complete set of the digital copies produced by the partnership, and the metadata required to make use of them.
5. Ultimately, our organizations will hold unrestricted ownership of these digital copies and metadata.
6. Our partnerships will balance the interests of the public with the financial investment of our partners.
7. We seek to protect and enhance our organizations' interests, while respecting the interests of our users, our community, and our partners.

The post goes on to identify other priorities as getting a better handle on what stores of moving images archives and libraries possess, and taking a more aggressive position to protect the public interest in these materials in negotiations with commercial partners, which reflects very closely Brantley's and others' criticisms of the Google Library partners' (UT included) efforts in this regard.

There is a brief reference to the legal limitations on such a project:

"... it is our hope that we can find ways to maximize access to moving image collections to the greatest extent that the law and our means permit."

Clearly, these legal limits are not insignificant, especially given the overall key principle that providing access is the best way to preserve. So I wonder what the group thinks it will be able to do with the undoubtedly huge number of moving images for which permission will never be able to be obtained, either because the owner will decide that maybe there's money to be made on the movie and so will want to limit access, or because no owner can be identified (orphan works issues). Even identifying what is in the public domain will be a monumental task. I would be very encouraged to hear that among the cultural practices that the group hopes to change is the oftentimes extreme cautiousness of conservative institutions in the face of ambiguities like those presented by orphan works. I note that the orphan works legislation so optimistically hearalded last session wasn't even introduced this session and with an election next year, it probably won't be introduced then either. It could be another decade before enlightened self-interest finally brings content owners around on the importance of freeing this kind of content from its near-century of forced obscurity. In the meantime, more courage on the part of archives and libraries to provide access to identified orphans works, regardless of medium, would be welcomed.

One of my favorite blogs is the Institute for the Future of the Book, if:book as it's called, which I read every time it's updated. So I learned last week that Siva Vaidhyanathan would be joining the Institute as its first fellow. Siva is also moving from his current home in NYC to the University of Virginia. You can read the institute's note about this as well as Siva's notes about a keynote address he gave recently where he outlines (and, actually, people blogging his speech in real time outline for us) his evolving criticisms about the Google Book Search project. For earlier expositions of Siva's thoughts on these matters, you can review any number of web postings, among them an April post from the ACRLog site, Siva Vaidhyanathan questions Google Book Search. The comments are worth a read also.

Siva is working on a book on this subject, and therein lies an intriguing opportunity. The Institute for the Future of the Book hosts several experimental new forms of networked expression (new books). The if:book note indicates,

"we will be a launching a new website devoted to Siva's latest book project, The Googlization of Everything, an examination of Google's disruptive effects on culture, commerce and community."

Hopefully this means that Siva's ideas will be presented in a way that those of us in the community who do not fully understand his criticisms will have a chance to question and engage him more fully in a discussion of his concerns than we usually can in the hurried conversations that we may have at the close of his excellent speeches. I certainly do look forward to that possibility. I've read much that he's written about his concerns over the last 2 years, and I still am not convinced that he's entirely right about this. When his book site launches, I'll post a note here, and I would urge Collectanea readers to include the book site in your rss feeds. It ought to be a very interesting and active discussion forum.

Ironically, if:book posted just last Wednesday a sort of counterpoint to Siva's concern that Google "controls too much knowledge," noting that the Internet Archive and Open Content Alliance had launched a demo version of Open Library,

"a grand project that aims to build a universally accessible and publicly editable directory of all books: one wiki page per book, integrating publisher and library catalogs, metadata, reader reviews, links to retailers and relevant Web content, and a menu of editions in multiple formats, both digital and print."

Additionally, Mike Madison, at madisonian.net, in commenting upon Siva's concerns, says,

"One reason I have been less skeptical of Google than Siva (among others) is my confidence that Google — while hardly a savior, and deserving scrutiny — isn’t the end game."

One final quote from Ben Vershbow about the Open Library project, because this is such an exciting idea and I hope you'll go read the entire post:

"Building an open source library catalog is a mammoth undertaking and will rely on millions of hours of volunteer labor, and like Wikipedia it has its fair share of built-in contradictions. Jessamyn West of librarian.net put it succinctly:

"It’s a weird juxtaposition, the idea of authority and the idea of a collaborative project that anyone can work on and modify."

But the only realistic alternative may well be the library that Google is building, a proprietary database full of low-quality digital copies, a semi-accessible public domain prohibitively difficult to use or repurpose outside the Google reading room, a balkanized landscape of partner libraries and institutions left in its wake, each clutching their small slice of the digitized pie while the whole belongs only to Google, all of it geared ultimately not to readers, researchers and citizens but to consumers. Construed more broadly to include not just books but web pages, videos, images, maps etc., the Google library is a place built by us but not owned by us. We create and upload much of the content, we hand-make the links and run the search queries that program the Google brain. But all of this is captured and funneled into Google dollars and AdSense. If passive labor can build something so powerful, what might active, voluntary labor be able to achieve? Open Library aims to find out."

Nice gig, Siva! Congratulations!

I am very proud to announce the launch of the Texas Digital Library's (TDL) blog, The Scholar’s Space , featuring a team of four contributors, including me, two of my colleagues at the University of Texas at Austin, and a colleague at University of North Texas, with more to come over the next few months. The Scholar’s Space joins scholarly communications blogs sponsored by friends at other colleges and universities, and national and international organizations. We’ll be providing commentary on newsworthy items related to TDL participants’ local and global interests.

If you have an interest in scholarly communications issues, I encourage you to visit and subscribe to our RSS feed to keep up to date on the news and become active participants yourselves, either by commenting or contributing. If you’d like to be a regular or a guest contributor, please contact Georgia Harper. If you visit, let us know what you think!