©ollectanea

Encouraging note in the Feb. 1 Library Journal Academic Newswire, For Oxford University Press, Online Venture Breathes New Life into the Monograph, describes just the kind of thing I'm excited to see in the scholarly publishing arena -- a database of monographs that can be licensed under a "perpetual access" model. And it appears to be paying off handsomely. Says Niko Pfund, OSU's Vice President and Publisher:

"We're not seeing the end of the book, we're seeing the galloping diversification of how its message can be conveyed," he explains, describing the press' philosophy as "format agnosticism," that is to deliver content in whatever format is desired. "If dissemination and influence is our primary currency, then having books available via OSO, or netlibrary, in print perpetuity via print-on-demand, or in Google Book Search and Amazon's Search Inside the Book means that more people can access your work in more ways from more places than ever before. That does translate to dollars."

I have believed for some time that copyright is only one lever, and perhaps not the most effective lever, to press in attempting to negotiate a path into a more productive future for scholarly publishing. Creative business models are by far more powerful. Of course, I realize that holding a copyright gives one the power to veto someone else's creative business model with respect to that copyrighted work, so copyright is not unimportant. Nevertheless, it's such a relief to see evidence that copyright owners are taking chances, experimenting, and learning about the benefits of digital access and use.

I don't think it will be long before more authors will be willing to experiment themselves -- with or without the aid of publishers. It would seem to be better for both if publishers are willing partners in the exploration of the world of the networked book. Brave explorations like Oxford University Press' can shed some light on the path.

Thanks to Kim, Olga, Jack and all those at CIP whose work over the last month or two brought (c)ollectanea to life. This is a wonderful opportunity to expand the good work of the CIP by bringing members of its audience into a broad conversation about copyright issues.

One never knows for sure who, if anyone, is listening when you blog, so I hope those of you who are will take a moment now and then to add your voices to the mix. Comments, questions and observations are welcomed.

I follow many other bloggers daily and have found it to be an excellent way to keep up with what's happening in areas that interest me. Today I noticed that the author of The Long Tail, Chris Anderson, posted a note about his book having been pirated and made available through Bittorrent -- The Long Tail: Books want to be free. Far from being upset about it, he's elated. What interests me are his musings about the possible business models that could support free audio books, alongside hardback and paperback versions. These kinds of conversations about the future of the publishing industry are very important. Publishers need all the creative minds they can get working on the problems of moving forward in a networked world. Copyright by itself is only part of the answer.

Microsoft has made headlines a lot lately. The release of Vista, a new Book Search interface, a scathing attack on Google earlier this week before an AAP gathering in NY, and now, this NY Times article, Searching for Michael Jordan? Microsoft Wants a Better Way - New York Times, featuring Microsoft's efforts to improve its statute in the world of online search.

I saw an interesting connection among these headlines. I've been reading about how Vista packs the biggest DRM accommodating punch of any operating system ever (Google search on something like Vista drm to get a feel for the commentary), the speech before the AAP painted Google as cavalier about copyright and MS as totally supportive of the publishing industry, and the stats in the NY Times piece show that Microsoft is near the bottom of the heap regarding the use of, and lack of recent growth of, its search features.

These pieces look like parts of a very aggressive campaign to claw its way out of its own 20th Century niche, taking no prisoners, no holds barred. It has all the hallmarks of a political campaign, including the mudslinging. Tim O'Reilly chides MS and insists it is bigger than this, that we expect more out of a player of this size. Larry Lessig believes MS is just plain wrong about Google's cavalier attitude. I certainly agree with Lessig's sentiments, but as for whether we can expect more from MS, I don't know. Perhaps MS is just as much a victim of its business model as Holly wood and the publishers are of theirs (O'Reilly's comments again, in another entry)?

I wonder whether in working together as they must have, to implement such powerful DRM controls in Vista, whether they may actually impair their own progress towards more efficient business models in the future. In fact, I often think about DRM in the context of the old adage, "give them enough rope and they'll hang themselves." Many of the commentaries about Vista's DRM suggest that it's like a suicide note... Only time will tell.

I read with interest today that the President of the Bibliotheque National, Jean-Noel Jeanneney, has apparently been forced to resign:Jean-Noel Jeanneney quitte la presidence de la BnF - Tour de Toile du BBF. You might wonder why this seems important to me, unless you know what I'm studying at the iSchool...

But, more generally, it's of interest because Jeanneney is an impassioned critic of all things Google. In fact, in his slim volume, Google and the Myth of Universal Knowledge, he says at one point, something to the effect, "Whatever Google does, we should do the opposite."

His principle criticism was that selectivity and organization should be at the heart of the process of digitization, and of course, Google's goal is to digitize everything and let the users sort it out through search, tags, bookmarks, etc. He also criticizes our reliance on the market to do what he thinks should be done with public money in Europe. At the core of Google's undertaking, and implicitly rejected in France's efforts that so far involve only public domain works, is reliance on fair use to justify digitizing books still in copyright. Being an employee of a Google Library partner, I'm not neutral on the matter, but I must say that the book is very well written and raises good points. Nevertheless, one commenter on the blog where I saw this note about Jeanneney's departure seemed to suggest that there might be a connection between the fact that Google had so far digitized 10 million books and the Bibliotheque National, 100 thousand, and Jeanneney had essentially castigated Google for performing well. While neither of the figures is likely accurate, they get the general gist of the point across.

As always, there's no doubt a lot more to the story than initial reactions suggest, but I wonder whether Jeanneney's departure signals an opening for a new attitude towards mass digitization projects in France. Not coincidentally, I am headed there in 5 weeks to interview several librarians about their views of the future of the library in France. I have both Bibliotheques Nationales on my agenda, as well as 2 University libraries and a municipal library (Lyon). It's an exciting time to be thinking about the future of libraries, and May is a fine month to visit Paris.

It was a big week for copyright. Events were reported all over the blogosphere. My friend and fellow grad student, Carlos Ovalle, has a nice roundup on his blog, Copy This Blog, where he reports several unsurprising legal opinions based in the sad music industry war against college students, and in a post a few days earlier, the related decision of Ohio University to ban p2p software on its system.

MPAA's former head, Jack Valenti, died this week. Lawrence Lessig offers an interesting memoir.

And the Stanford Center for Internet and Society posted a note about a decision that determined that downloads were not performances for ASCAP/BMI/SESAC royalty purposes.

Tobe Liebert, one of my favorite law librarians (I have lots of favorite law libraians -- our UT Law School Library is one of the best!), posted a note about Siva Vaidhyanathan's explication of his position regarding the three serious dangers of the Google Book Search Project, well articulated and succinct. His argument raises important questions about a future that includes wildcard projects like Google Book Search. If you have a chance to see Siva in person, don't miss it.

On another note, I am winding down my first full year of grad school. Classes end next week. Papers are due, presentations will be made, files of printed articles will be dumped (recycled, of course). It has been a really amazing experience for me, one that still astonishes me, nearly 9 months into it. I'm registered for the summer session and for the fall. I shift focus next year to research, having been accepted into the Ph.D. program. In the meantime, I head off to France to do a little bit of research, sort of getting my feet wet in the Seine (and the Cote d'Azure). Whatever I conclude based on my little sojourn will be reported through the CIP, perhaps even here on the blog. I'm going to write a paper, though I have to admit, I call it that only reluctantly, because I am planning to put my money where my mouth is -- I'm focusing on the future of the book, and I'm going to place all my research data, analysis, results and predictions in forms that explore that future. So, it will be fun, as well as instructive for me to figure out novel ways to report research in progress. I hope you'll enjoy that exploration too. The future of libraries is affected directly by the future of books so it is in our interests to pay attention to the expansion of the expressiveness we experience in books today.

A fellow Texan, and a fellow Ph.D. candidate (at North Texas State University), Brian Kenney gave a lecture about 2 weeks ago, ALA TechSource | Does Print Still Matter? Brian Kenney on the Future of Content in a 2.0 World, that really piqued my interest. He has much to say on the subject of the future of libraries, and I recommend that you read the ALA Tech Source article about his talk. But the thing that really caught my eye was an example he used of a traditional publisher successfully integrating Web 2.0 social technologies into its online publishing for the most part, sans DRM -- The New York Times. I visit this site all the time. Many of my bookmarked pages are Times articles. The permalink feature allows me to preserve my links to the articles even after they would normally enter the Times' archive and require higher levels of subscription service to access them than I enjoy. Kenney points out that the Times uses other means to attract and keep customers on its site:

Kenney discussed the move by The New York Times into the 2.0 world: "...once on the site, stickiness abounds. Comments are invited on features. Video and audio extend the text content." Kenney noted there are over two dozen blogs integrated throughout the site, ranging from "Bats," about the upcoming 2007 baseball season to "On the Runway," offering a behind-the-scenes look at the fashion industry. "Most significantly," he said,"other users serve as guides to Times content. Tag clouds crop up. You can view the most popular articles by those most emailed, those most blogged, or by most popular search terms."

This integration of the user experience--and opinion--radically changes the construct of the traditional newspaper, which has relied on an editorially created hierarchy based on placement within the publication. "Real estate, in print, is everything, that and the font size of headlines," Kenney said.

This contrasts sharply with the approach of most publishers in the print world exploring business models on the Internet. Most ebooks are DRM heavy, one of the factors contributing to the lackluster performance of the genre.

The Times example also points out the decreasing importance of control in general, even to highly successful old-media businesses. The NY Times makes it easy -- not difficult of expensive -- for readers to reuse and refer to its content. Contrast this approach with some of the restrictive user licenses libraries must agree to in order to make electronic resources available to our constituents. I suppose it is just the natural evolution of business models given the shock of the potential unleashed by the Web, and that things take time. Nonetheless, it is encouraging to see such high-profile examples of publishers inviting users to make use of content, instead of asserting copyright as both a sword and a shield, when it is now possible to be profitable without so inhibiting use and enjoyment.

Just noticed an interesting entry at the Institute for the Future of the Book (if:book), if:book: chromograms: visualizing an individual's editing history in wikipedia that connected up for me with an article I had read earlier at Peter Brantely's blog, shimenewa, Recontracting authors' rights.

Peter was commenting upon the marvelous possibilities for research that open access provides -- not merely access to results, but access to a rich data treasure that can be mined for connections, where the value is in the collection rather than the individual work. The if:book note is about just that kind of mining: researchers at IBM are mining the very open Wikipedia for information about how editors work, how they manage a peer production project.

Open access is not an end in itself. It is instrumental. It admits possibilities that no one has thought of today. These possibilities are the heart and soul of research. Open access enables the heart and soul of research. Freely accessing others' writings is not the payoff for open access, it is a small, first step, a door through which creativity enters. It is worth pursuing. It is worth spending scarce resources to make it possible, not so an article can park itself in an institutional repository, but so that someone who isn't yet born can connect up some dots some day because the article and a gazillion other things were there for her to ponder, search, mine, analyze, ...

I don't often lose sleep over copyright issues anymore. But last night I could not stop thinking about the Copyright Office's new resource for *children.* Please have a look if you haven't already: Taking the Mystery Out of Copyright. There's a text only version if you want to skip the cartoons and the music (assuming you are not 13). This bothers me on so many levels, but I'm only going to address one level here, the most obvious. My experienced, calm, collected voice is telling me to wait a few days before I write this. Ok, at least wait a few days before I publish it. Clearly, I am ignoring that voice. I should at least acknowledge that I'm probably overreacting. I no doubt will feel differently about it after I have thought about it for awhile. Maybe I'll write about it again after a few days.

That said, do children really need to know about copyright? Well, I reluctantly must admit that yes, they do. Should they need to know about copyright registration, copyright history, and the role copyright plays in protecting film, music, art and literature? Well, it's not like they need to be protected from this, like it was senseless death, war violence or something cruel and ugly. So, it is commendable that the Library of Congress offers a well-done, straightforward, and fairly neutral informational piece. What would we expect the Library to talk about, other than what it does, which is, in this case, copyright registration. A narrow slice of the copyright pie, to be sure, but again, that's one of the things the Library does that no one else does.

But on the other hand, remember what it was like to be 13? Was registering your copyrights something you were all that concerned about? Should you have been? Have things changed that much with respect to how likely it is that the metaphorical box of things you created during your 13th or 14th year of life needs protection? From what? From becoming part of the stream of creativity (my metaphors are all over the place) from which you yourself borrowed to create?

If I had one opportunity to tell kids about copyright, I suppose I would mention its role in protecting the commercial interests of creators and distributors like the film, music, art and publishing industries, but in the next breath I would appeal to their own sense of how most things we all create are not meant for commercial exploitation, but instead are meant to be shared, reused, remixed and borrowed from. I'd say, "Look inside that box of things you created last year. Let's look at where all your things came from. Let's see how borrowing and modifying and adding your own ideas works in real life, and what we all need to keep that going."

The lesson I would teach is about the fact that *YOU HAVE TO DO SOMETHING* if you want your own creativity to be added to and be a part of a flowing, lively stream, rather than be caught up in a little eddy that goes nowhere. Congress (something here about infinite wisdom) has created a set of rules that, without your doing anything beyond the mere act of creating (tangible things, of course), keeps everything you create in that box, locked away, maybe forever, but at least for, let's see, you're 13? Let's say you'll live to 78, your box of stuff stays locked away for the rest of your life (65 years) plus 70 more years. Yes, in 135 years your box of stuff will possibly join the stream of creativity. If the box is still around then. And somebody finds it. And they know you and only you created it, and when you died. And they know about copyrights. If that doesn't fit your idea of what you want, then YOU HAVE TO DO SOMETHING. You have to let people know that you have something else in mind for your box of stuff. Fade to Creative Commons logo/website.

The assumption that everything needs "protection" for 1 1/3 centuries is so out of step with the reality of how we all create and most importantly, *why* we all create (overwhelming, not to make a living from our creations), and the serious consequences of being out of step with reality makes me very sad, and angry. The waste, the untapped creativity, and the criminalizing of creativity cannot be defended in my opinion. One size does not fit all. Given the enormity of the explosion of creativity enabled by the networked environment, to say nothing of creativity in the real world, the lessons we need to teach are about taking responsibility to do individually what Congress cannot seem to do for us as a nation -- create a copyright that fits our widely divergent needs, rather than one that both stifles us creatively and turns us into criminals (or potential civil litigants -- there's another interesting copyright lesson for kids) if we ignore it. We need to tag our creative works with simple statements that express how we feel about their place in the creative stream. I would recommend Creative Commons licenses for many reasons, but any statement about sharing is better than doing nothing and thereby consigning your work to copyright's centuries-long holding bin, or perhaps appropriately named, wastebasket.

Are you anticipating the launch of the iPhone in two days? Are you at this moment in a line to buy one? You could be. You probably aren't. But if things go even a little bit like everyone is predicting they will, the iPhone will change your life whether you have one or not. Take, for example, the post at Print is Dead: Books in Our Digital Age ｻ Apples and Changes: What publishing can learn from the iPhone. The author sees the triumph of the multi-use device as the big story here, with profound implications for publishing.

I don't disagree, actually, but from my perspective, it's another example of the triumph of "show me the money." Once any content industry figures out how it can make more of it from letting loose than from holding tight, it will let loose. Copyright won't have to change for this to happen. It will just slip into the background from whence it came (before the Internet).

I had just read a few minutes before the Print is Dead blog post, that Harry Potter is making more money from sales and licensing of things other than the actual book. Granted, a toy Harry is probably protected by intellectual property rights too, but the toy Harry is holdable, carryable, posable. He can be digitized, obviously, but he becomes something else when he's digital. He has an additional value as a thing, and his sales success can take the pressure off making profits on the book content itself, that can be digitized (and over which you lose control if you digitize them).

So these two stories come together: the iPhone implication is that a multi-purpose media device is the missing link, that once it's widely in use, publishers (and Hollywood and everyone else) will understand why the stand-alone reader never succeeded, publishers will begin to respond to or even anticipate consumer demands and migrate to networked social environments and the difference between a book and the 'net will gradually fade away, entirely for some genres, not entirely for others. And copyright doesn't need to change for any of this to happen. It just becomes less relevant to the business of making profits, so it's not always necessary to assert it. So the theory goes.

Chapter II: next installment to follow after a year or two of iPhones ... In other words, "we'll see."

A couple of months ago, I noticed a tie-in between the publishing industry's future and the introduction of the iPhone reported at Print is Dead, and posted an entry here on the subject (What publishing can learn from the iPhone). Today, following Wednesday's big announcement by Steve Jobs that he's slashed $200 off the iPhone price and introduced WiFi ready iPods (just Google it), the opportunities for the publishing industry to jump on the train to the future continue: Apple Saves The Publishing Industry | Booksquare.

All the positive motivation is there, as rigorously detailed at Kassia Kroszer's post (Booksquare). In fact, Kroszer's points directly respond to complaints librarians like Karen Coyle are making about the unavailability of Internet in the stacks (I hope libraries are listening). But the stick is there as well, as noted at TechCrunch in connection with the announcement that Amazon and Google will be entering the ebook business:

Like the iPod, the key driver of sales of the [Amazon Kindle book reader] device won’t be the depth of content available on the associated service, but the availability of pirated, free content on BitTorrent and other P2P networks. eBooks are coming, but they’re not here yet.

Wake up! Smell the Starbucks (where you can WiFi music directly to your new iPod now...). Copyright owners can wrap themselves in their copyrights and drm themselves into obscurity, or they can find a seat on the train. It will be different, not relying on controlling access to everything, undeniably, but I think that's the future -- for music *and* for publishing.

The story about the NY Times closing down shop on its 2 year experiment in selling access to content has been reported all over the blogosphere, from many different angles. It is a rich story, really, and does in fact have much to say about what's happening in the business world of the Internet. The if:book report reflects the change from a publisher's having confidence in the power of its own brand to draw in paying subscribers to its having confidence in the power of Internet search and advertising to draw in far more dollars in the long run: if:book: all the news that's fit to search.

I agree that the power of search makes dollars and sense. But I also note that this particular strategy places copyright's *exclusion" right, it's reliance on exclusive rights to motivate creation, a little further down in the hierarchy of what one needs to succeed in the online world. Or, put another way, if you play the copyright card front and center, you ignore a lot of other cards that are ultimately of more economic value.

We are finally beginning to get the idea that control over copies isn't the only way to exercise one's copyrights. Sharing actually works, economically. It also makes a lot of sense that advertising would be the liberator. It's under our noses all the time with television. But surely it's not the only alternative to controlling access and counting copies. The world of all advertising, all the time has its own downsides. Nonetheless, it's encouraging to see major publishers leaving access control behind.

Well, it’s official: The University of Texas at Austin Libraries has launched our documentary blog for our public domain and orphan works project, free*the*books. We invite you to view and post comments! Our new blog is focused on our research about international copyright laws that control the use and distribution of digitized books online.

As a Google Library Partner, UT Libraries will digitize over a million books from its rich collections within the next six years. Digitization of 800,000 books in the Benson Latin American Collection began in June of this year followed by this companion project to develop an authoritative process for determining the copyright status of books published in various Latin American countries and to identify foreign works in the public domain.

We have found little guidance to help us reliably identify which of our books are already in the public domain so we are piloting a project to develop new tools for ourselves and for anyone who wants to tackle these difficult public domain problems. We will document our process, our progress and our results on the blog’s pages along with links to web resources we find useful.

The initial pages of the blog include online resources to determine critical author birth and death data, prototypes of legal evidence tables and draft guidelines by which books, wherever published, may be determined to be in the public domain

We will be adding features, more pages and new posts to the blog on a regular basis and from time to time will also have guest contributors to add variety and fresh perspectives. We invite suggestions and comments from other Google Library Partners and anyone undertaking similar or related projects.

Email us at freethebooks@gmail.com or IM us at our Meebo widget in the sidebar of the blog. We are here; we are building an evidence base and we are looking for virtual partners!

Larry Lessig announced today that the fourth of his books, The Future of Ideas (actually, the second book in order of publishing) has joined the other three in being licensed for free access under a Creative Commons license: The Future of Ideas is now Free (Lessig Blog). Of course, for an author of his statute, this kind of deal is doable whereas for most authors, it's probably not. But the more important aspect of his deal is the data that it generates as an experiment. Publishers have to find out what happens when they abandon their tried and true approaches, and it's a real shame that it takes someone begging them to try something new, but that's that. So, at least it's a toe in the water.

It's a new year. So much happened last year in the music industry, in the courts with respect to fair use for transformative works (mostly the search engine cases), tv on the Internet, the NIH OA mandate. What might we look forward to this year? I'm going to be focusing on change in scholarly publishing, beyond Open Access and the NIH -- the University Presses and library collaborations. The experimentation taking place in these venues is likely to be very robust this year, moreso than in commercial publishing, because the stakes are much higher for University Presses. They've come so much closer to the precipice than their commercial cousins. Just today I noticed that five University Presses had nabbed a huge Melon grant ($1.37 million) to study ways to streamline some of the backend tasks:

Top university presses announce a collaboration to find a way to reduce costs of scholarly publishing and to allow for more books to be released. Set up as a joint operation for copy-editing, design, layout and typesetting for the work in American literatures, the collaboration will be funded by the Andrew W. Mellon Foundation. The five university presses involved are: the NYU Press, Rutgers University Press, Fordham University Press, Temple University Press and the University of Virginia Press.

Check out Scholarly Communication at U of Illinois for more details.

In addition to Press/library collaborations, I think we should keep an eye on the efforts of libraries and library organizations, as well as others, to make progress on the orphan works problem. Orphan works scream out for creative, collaborative solutions, and many people are putting their heads together to come up with ideas in the absence of meaningful (actually, in the absence of any) solutions from Congress.

And what do you think about the new initiative from the Center for Social Media to define as fair use a broad range of creative uses of others materials in the creation of videos? The report is called, Recut, Reframe, Recycle. I am very impressed, though not at all surprised. This Center has been in the vanguard of effectiveness by taking actions that are having concrete results. Perhaps Congress' ineffectiveness in restraining copyright's growth and strength has indirectly encouraged the tremendous surge in creative work-arounds. Not all by itself, of course. Massive consumer resistance has certainly had a part to play... Interesting to see it all moving along after 15 years of watching.

Yahoo! announced today that it will be supporting Semantic Web and microformats to improve search results for structured data (as reported in ReadWrite Web: And Nerds Became Kings: Yahoo! to Announce Semantic Web Support - ReadWriteWeb). The Semantic Web has been a dream of Tim Berners-Lee for a long, long time, and up until now, pretty much way behind schedule because it just seemed, well, too hard. Things are changing.

They always do.

You know how RSS allows you to get feeds from your favorite blogs and other newsy Websites? That functionality is one example of how we are able today to break the offerings on a Webpage up into small parts and send them zipping around the Web. The text is separated from the formatting on our page, the way the text is displayed isn't carried around with it. That enables a snippet of our text, maybe the first paragraph for example, to be displayed by someone, anyone who subscribes to our feed.

Semantic Web potentially micro-bites the content even further -- into little bits that are identified as to precise type: this part is a last name; this part is a first name; this part is a phone number; this part is a set of key words; this part is an abstract, etc. People might tag text down to this level to enable its extraction and manipulation, its readability by computers (see Michael Jensen's article, The New Metrics of Scholarly Authority, about the importance to Authority 3.0 of being computable); its reorganization for other purposes. It gets treated like data rather than information or knowledge (don't let's debate what those things are just now).

What might this mean for copyright policy and practice? Wow, it just sends the mind reeling. I can't begin to imagine the implications, but one thing seems clear: a Semantic Web has the potential to further dramatically reconfigure the relationship between copyright owners and those who wish to access and use their copyrighted works. Implicit in the markup for computer recognition, extraction and manipulation is a license to actually do those things. Atomized text and images, sounds, audio-visuals. Wow. Might a whole new round of fear and loathing be right around the corner? Or will this just add to the steady pressure on copyright owners to open up their works to use and reuse -- if they want attention at all?

I have taken nearly a week to mull over this case that has been buzzing around the blogosphere, around email and even in real life, and I'm glad I did. I think I see it more clearly now than I did a week ago when the news first hit. I managed with a little time to connect it up with everything else in my life, well, my copyright life.

I guess it was reading Claire Stewart's post at the Northwestern University Library Blog (NUL Copyright: What does the lawsuit against Georgia State mean?) that pushed the last little piece into place. OA.

Yes. OA.

It all started at an AAUP/ARL Scholarly Publishing Symposium in the early 90's. I was lucky to be invited, and I made a speech about Texaco (the case) or something like that. I don't really have a lot of memories from this event (hearing Jean-Claude Guedon speak is one of them, however), but my memory of a conversation with Ann Okerson, now at Yale University, is still very fresh. The lead in must have been about market failure as the driver for fair use and she contrasted L. Ray Patterson's point of view, as expressed in his book, Copyright: A Law of Users' Rights. She talked about it fondly, but she agreed it wasn't the way things were, rather, it was how they ought to be.

Second piece: That idea of "how things ought to be" contrasting with "how they are" is a constant of fair use discussion because fair use is so open to interpretation. It can mean so many things. But we get our "how it is" meanings about fair use from the courts' interpretations. We have to draw that distinction, if we represent real clients, between how it could be or even should be, and how it is.

And that's what I've been doing for years as copyright counsel for the UT System. I'm grateful to have this task. It keeps me grounded. You have to know what your absolutely best arguments are, the law, and policy, but you also have to be realistic about the likelihood of winning those arguments, so your client can be realistic too, and make his or her risk assessment and go forward.

Which brings me to the third piece. Many people have spoken eloquently about why we as a society need to provide educators with a broader scope of fair use than just the "high transactions cost market failure" approach would allow for the kind of copying at issue in the suit against GSU. I rounded them up in an article I blogged at Lifelong learning a year or so ago. See for example, this section on Market Failure, and this one about market dysfunction. I can add Claire's comments to the list. I cannot believe that these arguments were not made on behalf of educational fair use in the cases about classroom and research copies. And they did not win the day. Maybe it was because of the profit aspect of the defendants in all those cases. Maybe the result would be different today with GSU a nonprofit educational institution as the defendant.

But my money is not on that proposition. And that brings me to my 4th piece. Losing in Congress and losing in courts -- happens all the time. Even when you win, you lose. The so-called compromises hashed out between stakeholders in congressional statutory marathon negotiation sessions read like some of the worst contracts I've ever had to review. And this is law for teachers and students to follow. Uh-huh. Right. All we've managed to effect with Congress is a stalemate. Oh, that's no small accomplishment. Keeping things from passing has become the best we can do. Think about that.

Many are optimistic about the string of fair use cases coming out of the "transformative" field lately, and I am too, but I don't think they offer the life saver to digital course materials distribution that others hope for. I don't think courts will go that far.

So, 5th piece: what's left if you really, really, really believe that educators ought to be able to use whatever they need to and want to use in their classrooms without worrying about what it costs or whether it's fair use?

Consumer resistance, or OA.

I don't have to advocate consumer resistance. We can get there without infringing people's copyrights. The very same arguments that Claire makes on behalf of educators and students being able to just read others works even if they can't afford to pay are turning the corner on OA for scholarly publishing. The battle for OA in journals is far from over, but the outcome is pretty clear. Now read anything about OA for the scholarly literature and substitute educational materials and see if you don't agree. It makes perfect sense. The same struggles the industry is going through to figure out how to make the economics of OA work for journals are going to come to monographs next and then why not educational publishing. If journals can figure out how to charge for other things besides digital copies, so can monographs, and monographs are, well, books with longer names. Books can be freely accessible without authorship, editing, peer review and distribution falling into the gutter. Do we know how right this minute? Maybe not. Is it impossible? Absolutely not. Do we need to figure it out? Absolutely. Will we. Absolutely.