Law Librarian Blog

Will the Sky Fall on Copyright Holders? The Effects of a Digital First-Sale Right

In Kirtsaeng and the First-Sale Doctrine's Digital Problem, Stanford Law Review Online, (May 7, 2013), Clark D. Asay argues that "the history and purpose of the first-sale doctrine provide good reasons to abandon the licensee/owner dichotomy as well as the formalistic approach to interpreting the doctrine’s applicability to digital transfers. Doing so, furthermore, is unlikely to undermine markets for copyrighted works, but instead will help preserve the appropriate balance between the rights of copyright holders and consumers that first-sale rights have historically helped maintain."

Recommended. [JH]

For an Introduction to or a Refresher for the Topic: Heller, Hellyer and Keele's The Librarian's Copyright Companion, 2d ed.

Andrea Alexander, Ohio Northern Univ. Law Library, reviews the second edition of Heller, Hellyer & Keele's The Librarian’s Copyright Companion (Hein, 2012). A brief quote from her AALL Spectrum Blog post:

Although The Librarian’s Copyright Companion is organized in a way that makes it easy to look up specific topics in copyright, it reads more as a treatise than as a reference resource; ideas introduced in one section are referred to in later ones, making it difficult to take a section out of context for quick answers to specific questions.  However, as an introduction to copyright for librarians or as a refresher for those who aren’t up to date on recent developments, it works very nicely.  Some particularly helpful organizational choices are the inclusion of  “The Bottom Line,” a concluding note at the end of some sections that summarizes more complex legal issues; Question and Answer sections on topics of frequent interest; and Comments on examples, offering suggestions and opinions when black letter law is not available.

[JH]

GPO Makes FY 2014 Budget Request

According to this May 21, 2013 press release, "GPO is requesting $128.5 million for FY 2014, which is provided through three separate accounts in the annual Legislative Branch Appropriations bill" for

• The Congressional Printing and Binding Appropriation covers the cost of information products in digital and print formats that GPO produces for Congress. About 70% of this cost is for preparing the electronic files used for both digital access and printing. For FY 2014, GPO is requesting $79.7 million.
• The Salaries and Expenses Appropriation of the Superintendent of Documents primarily covers the cost of the Federal Depository Library Program, which works in partnership with approximately 1,200 libraries nationwide to provide public access to Federal Government information in digital and print formats. For FY 2014, GPO is requesting $35.8 million.
• The GPO Revolving Fund receives appropriated funds for specific technology investment and facility improvements. For FY 2014, GPO is requesting $12.9 million. The request includes funding for the continued development of GPO’s Federal Digital System (FDsys) to support increased online access to congressional and Federal agency information as well as other digital information technology improvements.

Hat tip to beSpacific. [JH]

ARL Describes Preferred Licensing Terms for Academic e-Books

The Association of Research Libraries (ARL) has published an article called E-Book Licensing and Research Libraries—Negotiating Principles and Price in an Emerging Market in Research Library Issues Number 280 (September 2012).  It describes the negotiated terms between the Association’s agent, LYRASIS and the content available through the University Press Content Consortium (UPCC) Book Collections on Project MUSE.  The article describes some of the key terms in the negotiated agreements.  They include:

• No DRM
• Perpetual use, archiving, and authorized uses under the copyright laws
• ADA compliance in software and hardware requirements
• Device neutrality
• The ability to download and share content within the academic community
• Use of the material for course reserve, whether in paper or electronic form
• Interlibrary loan of the material
• The ability to analyze the material via word search or other electronic indexing

 All in all, the terms as described in detail seem to favor academics and academic libraries.  I guess university presses are not nearly as paranoid about their content as commercial publishers seem to be.  [MG]

HeinOnline's Oral Histories of Law Librarianship Video Series

Another installment of interviews has been added to the Oral Histories of Law Librarianship Section of Spinelli’s Law Library Reference Shelf. Details here. Launched earlier this year, the below video is a preview of HeinOnline's oral history series. [JH]

Incorporation by Reference: Private Control Over Access to Public Law

Here's the abstract for Michigan Law prof Nina A. Mendelson's Private Control Over Access to Public Law: The Puzzling Federal Regulatory Use of Private Standards [SSRN], Michigan Law Review, Forthcoming:

To save resources and build on private expertise, federal agencies have incorporated private standards into thousands of federal regulations – but only by “reference.” An individual who wishes to read this binding federal regulatory law cannot access it for free online or in a government depository library, as she can the U.S. Code or Code of Federal Regulations. Instead, the individual is referred to the private organization that prepared the standard, which typically asserts a copyright and charges a significant access fee. Or else she must travel to Washington, D.C. Thus, this category of law has come under largely private control.

In assessing the arguments why law needs to be public, previous analyses have focused almost wholly on whether regulated entities have notice of their obligations. This article evaluates several other considerations, including notice to those who expect to benefit from the way government regulates others, such as consumers of dangerous products, neighbors of natural gas pipelines, and Medicare beneficiaries. Ready public access also is critical to ensure that federal agencies are accountable to the courts, Congress, and the electorate for the regulatory power they exercise. As shown by an assessment of the institutional dynamics surrounding public and private interaction to define the scope of federal regulation, the need for ready public access is at least as strong in this collaborative governance setting as when agencies act alone. Finally, expressive harm is likely to flow from government adopting regulatory law that is, in contrast to American law in general, more costly to access and harder to find. Full consideration of the importance of public access both strengthens the case for reform and limits the range of acceptable reform measures.

Highly recommended. [JH]

On the Scalia Footnote Watch

Be honest now, do you read footnotes? I do. So does David Post. Quoting from his recent The Volokh Conspiracy post:

I want to direct your attention to footnote 1 in Justice Scalia’s opinion for the majority [in Arlington v. FCC (11-1545) (Decided May 20, 2012)].  He has just introduced one of the parties, “CTIA-The Wireless Association,” and in the footnote he continues:

“This is not a typographical error. CTIA—The Wireless Association was the name of the petitioner. CTIA is presumably an (unpronounceable) acronym, but even the organization’s website does not say what it stands for. That secret, known only to wireless-service-provider insiders, we will not disclose here.”

This is a really embarrassing bit of nonsense — smarmy and snarky and extraordinarily stupid.

For much more, see Post's A Really Dumb Scalia Footnote. See also Jacob Gershman's WSJ Law Blog post, A Footnote to the Scalia Footnote. Mark provided a summary of the Arlington v. FCC decision here. [JH]

Class Status Denied in Copyright Case Against YouTube

Content owners lost another battle against YouTube last week when Judge Louis L. Stanton denied class status to copyright owners in litigation parallel to the Viacom International Inc. v. YouTube case. Lawyers for the Premier League, other foreign copyright holders, and various music publishers filed a motion with the Court to establish a world-wide class action:

The putative class consists every person and entity in the world who own infringed copyrighted works, who have or will register them with U.S. Copyright Office as required, whose works fall into either two categories: they were subject of prior infringement which was blocked by YouTube after notice, but suffered additional infringement through subsequent uploads (the "repeat infringement class"), or are musical compositions which defendants tracked, monetized or identified and allowed to be used without proper authorization (the "music publisher class"). Plaintiffs assert that there are "at least thousands of class members" the Infringement Class, and "hundreds" in the Music Publisher Class (Mem. in Supp. Certification, undated but served Dec. 12, 2012, p. 20).

Judge Stanton rejected the class certification stating that copyright claims are poor subjects for class status.  There are issues of proving ownership and registration of the work as well as the circumstances of how the infringement occurred.  Moreover, as a world-wide class, there are issues of applying varying foreign law for some of the copyrights at issue as well as which defenses may be available to YouTube.  Litigating these issues as a class does not makes sense, with the Court citing the Wal-Mart Stores Inc. v. Dukes case.  The Court concluded that reading of Federal Rule of Civil Procedure 23’s requirement that questions of law or fact predominate over individual questions could not be satisfied with such diverse individual issues lurking in the background.

Articles indicate that the unsuccessful parties will ask Judge Stanton for permission to appeal the decision.  I can understand their desire to pursue this litigation to the very end.  However, the federal courts seem unwilling to limit the DMCA safe harbor provisions or hold that defendants have an affirmative duty to scan their content for infringement.  Judge Stanton's order is here.  [MG]

Has Any Law Library's Print Collection Budget Increased 20 Percent Since 2010?

According to the 2012 AALL Price Index for Legal Publications (member login required)(Carol Avery Nicholson, Price Index Editor), the subscription list price inflation for serials (academic and commercial periodicals, court reporters, citators, codes, digests, legal encyclopedias, newsletters, looseleaf services, and supplemented legal treatises) for 888 sampled titles using 2010 as the base year increased 20.29% by 2012 and 21.64% if periodicals are excluded.

Subscription list price is not buy-new pricing. Quoting from the 2012 Price Index's instructions to vendors:

The price index reflects continuation costs and should be quoted at full retail, non-discounted rates. Please do not quote prices pertaining to new subscribers. "Subscription List Price" includes the cost of all supplementation, new or replacement volumes, recompiled sets, and all other continuation costs, for the stated 12-month period.

(Emphasis added).

Subscription list price inflation since 2010. Federal and regional reporters increased a whopping 71.42% (13 titles). State and federal codes increased 22.93% (61 titles). For traditional research and reference tools, state, regional and federal digests increased 22.93% (58 titles), legal encyclopedias (9 federal and state titles) increased 22.42% and Shepard's citators (30 federal, regional, state and subject specific) only increased 4.59%

For traditional secondary analytical sources, supplemented treatises increased 13.99% (257 titles). Followed by looseleaf services (a 12.30% increase for 61 titles).

Got $$$? While percent rate increases are helpful, average pricing dollar amounts can be more telling for specific product lines. 

Primary Sources
Reporters
	2010	2012
Average Price	$4,192.07	$7,186.19
Codes
	2010	2012
Average Price	$1,600.65	$1,967.72
Traditional Research & Reference Tools
Digests
	2010	2012
Average Price	$2,876.20	$3,845.59
Citators
	2010	2012
Average Price	$2,145.87	$2,244.33
Legal Encyclopedias
	2010	2012
Average Price	$4,315.94	5,283.83
Traditional Secondary Analytical Sources
Looseleaf Services
	2010	2012
Average Price	$1,818.23	$2,041.88
Supplemented Treatises
	2010	2012
Average Price	$1,179.81	$1,344,86

The Substitution Effect? If we had retrospective data going further back in time to a pre-2010 base year for the current and much improved market basket of titles, I believe an empirical analysis would conclude that reported price inflation represents the consequences of the Shed West era of print cancellation, most notably in reporters, codes, digests and legal encyclopedias published by WEXIS. Intuitively one can argue that cancellations of print subscriptions due to substitution by online access is producing substantially higher print prices in some market and product line segments.

Some basis for this intuition can be found in AALL's Biennial Salary Survey and Organizational Characteristics reports. According to the 2011 survey findings (member login required),  total estimated information materials budgets (of reporting academic, private and government law libraries combined) declined 21.7% in 2011 compared to 2009 data. The percentage of the total information budgets for electronic information in all market sectors continued its upward trend, meaning of course, that the percentage spent for print resources also is declining.

Without intending to criticize the work of this year's Price Index Committee or its editor, if the data for primary sources and traditional research and reference tools (my, not the Committee's, characterization) had identified average list pricing for each product type in two subcategories -- federal only and combined state -- in addition to the summary data reported above, my hunch is average state list pricing would be much higher. For example, the buy-new list price for Ohio Jurisprudence, 3d  is $13,955. Since I killed both of our copies of that title years ago, pick your own percent-based continuation cost estimate. $10K if 75%? Certainly not $5K (37%) as reported for average pricing of the nine federal and state legal encyclopedia titles sampled. The same sort of differential may be the case for state-level reporters, codes, digests and citators.

The Shed West era for state print resources is reducing the subscriber base at state levels which in turn is increasing the buy-new pricing and the percentage based cost for continuations. Law libraries are already seeing such incremental increases in state practitioner "deskbook" titles acquired for their collections. [JH]

Supreme Court Action: Attorney Fees in Vaccine Cases, Habeas Corpus, Foreign Tax Credits, and Chevron Deference

The Supreme Court issued four opinions this morning.  The first of these is Sibelius v. Cloer (12-236).  The case interprets the attorney fee provisions of the National Childhood Vaccine Injury Act of 1986 (NCVIA).  The text of the Act forbids an attorney to charge a fee for filing a petition but allows a court to award fees for successful petitions.  In cases of unsuccessful petitions, the court may award fees when the petition “was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.”

Dr. Melissa Cloer received three Hepatitis B immunizations from September 1996 to April 1997.  She began to experience numbness and strange sensations in her left forearm and hand.  Her diagnosis and treatment for that condition was inconclusive.  She was diagnosed with multiple sclerosis in 2003.  She filed a petition for compensation under the Act in 2004 after becoming aware of the link between MS and the Hepatitis B vaccine and MS.  The Special Master rejected her petition as untimely as the statute requires a petition to be filed within 36 months after the date of the first occurrence of the first symptom or manifestation of the injury.

The Special Master rejected Dr. Cloer’s argument that the time limitation should be subject to equitable tolling.  A divided panel of the Court of Appeals for the Federal Circuit rejected that conclusion.  The Court of Appeals en banc reversed again, holding that the limitations period began to run on the calendar date of the first medically recognized symptom or occurrence of the injury.  Dr. Cloer requested attorney fees for the unsuccessful petition.  A divided en banc Court of Appeals agreed she was entitled to attorney fees under the Act.

The Supreme Court affirmed, holding that the statutory language supports a conclusion that Dr. Cloer is entitled to attorney fees.  The Government asked the Court to interpret the statute to mean an untimely petition should be treated as if it were not filed at all.  The Court rejected that argument as under the language of the statute, the timeliness of the petition is not jurisdictional.  The Court rejected other Government arguments as well.  Justice Sotomayor delivered the opinion of the Court which was joined by all Justices with the exception of Justices Scalia and Thomas as to Part II-B, presumably because the Court referenced a House Report to bolster its understanding of the meaning of the statutory language.

The second opinion is Metrish v. Lancaster (12-547).  It involves habeas corpus in the context of a retroactive application of a Michigan Supreme Court decision to the defendant.  Burt Lancaster was convicted of first-degree murder and a related firearms offense in 1994.  At the time of the trial Michigan’s appellate courts had recognized a “diminished capacity” defense which negated the mens rea element of the first-degree murder charge.  Lancaster was convicted nonetheless.  He won habeas relief on unrelated issues and was retried in 2005.  Prior to the retrial, the Michigan Supreme Court rejected the diminished capacity defense in a separate case in 2001.  The trial judge applied the holding of that case to Lancaster and he was subsequently convicted again.  Lancaster asserted that the retroactive application of the Michigan Supreme Court decision denied him due process of law.  The District Court denied his habeas petition but the Sixth Circuit reversed.

The Supreme Court reversed the Sixth Circuit, holding that Lancaster was not entitled to relief.  The standard under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is whether the application of the state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.  The Court stated that the standard is difficult to meet.  It cited two of its cases for its decision.  The first involved a retroactive application of a decision by the South Carolina Supreme Court which the Court found to violate due process.  The South Carolina Supreme Court interpreted a trespass statute in an unreasonable way, unsupported by the language of the statute or prior decisions.  In the second case from Tennessee, the Court found that a judicial abolition of a rule that was archaic and did not violate the due process rights of that defendant.  The ex post facto provisions of the Constitution do not apply to judicial decisions.

The Michigan legislature created a statutory scheme for pleading insanity and defining the respective burdens of each side.  The Michigan Supreme Court case at issue merely held that the statutory scheme did not encompass the diminished capacity defense.  The Court distinguished its prior precedent and declared that it never found a dues process violation remotely resembling Lancaster’s case:

… where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not “unexpected and indefensible by reference to [existing] law.” Rogers, 532 U. S., at 462 (internal quotation marks omitted). Lancaster therefore is not entitled to federal habeas relief on his due process claim.  

Justice Ginsburg delivered the opinion for a unanimous Court.

The third case is PPL Corp. v. Commissioner (12-43). It involves whether a foreign windfall tax levied on a corporation may be taken as a tax credit in its United States income tax calculations.   Petitioner PPL Corporation was subject to a windfall tax in the UK.  Under IRC §901(b)(1), income, war profits, and excess profits taxes paid overseas are creditable against U. S. income taxes. Treasury Regulation §1.901–2(a)(1) interprets this section to mean that a foreign tax is creditable if its “predominant character” “is that of an income tax in the U. S. sense.  The Commission rejected PPL Corp.’s claim.  The Tax Court held the tax was creditable.  The Third Circuit Court of Appeals reversed.

The Supreme Court reversed. It analyzed the regulation and concluded that the statute and regulations reach net income.  It further analyzed the UK windfall tax law where a rate of 51.71% tax on profits above a threshold applied and stated that the windfall tax is nothing more than a tax on actual profits above the artificial threshold.  Justice Thomas delivered the opinion for a unanimous Court.  Justice Sotomayor filed a concurring opinion.

The final case is Arlington v. FCC (11-1545).  The case concerns the application of Chevron deference to an agency’s interpretation of its rules.  The Communications Act of 1934 as amended requires state and local authorities to act within a reasonable time on siting applications for wireless facilities.  The Federal Communications Commission (FCC) defines that time as 90 days to process an application to place a new antenna on an existing tower and 150 days for all other applications.  The cities of Arlington TX and San Antonio TX contest the authority of the Federal Communications Commission (FCC) arguing the FCC lacked authority to interpret the statutory limitations.  The Fifth Circuit found the statute ambiguous and applied Chevron, holding the FCC had authority to interpret and administer the statute.

The Supreme Court stated that if the statute is silent or ambiguous Courts must defer to the administering agency’s construction of the statute so long as it is permissible.  The issue is not jurisdictional, as with Congress granting the authority of courts to decide as case but not proscribing an outcome.  An agency’s interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority.

The Court rejected claims that the matters at issue are state and local concerns.  The Communications  Act supplants state and local rules, and the FCC is well within its authority to promulgate the time limits and to receive Chevron deference.  Justice Scalia delivered the opinion of the Court  and was joined by Justices Thomas, Ginsburg, Sotomayor and Kagan.  Justice Breyer filed an opinion concurring in part and concurring in the judgment.  Chief Justice Roberts filed a dissenting opinion and was joined by Justices Kennedy and Alito.  The dissent essentially argues that “[a]n agency cannot exercise interpretive authority until it has it; the question whether an agency enjoys that authority must be decided by a court, without deference to the agency.  [MG]

Extended Student and Law School Grad Access to Lexis Advance

As a follow-up to this LLB post, I have received information about LexisNexis programs for students and law school grads. First, there is the new Summer Associate "All Access" program. Law students can use their law school ID this summer for academic and work purposes from the date classes end in May through August 8, 2013. Graduating 3Ls also have unlimited access from the date their classes end in May through July 31, 2013 (when their law school Lexis Advance accounts expire). Registration is not required.

Second, graduating students can have extended access to Lexis Advance after graduation until December 31, 2013 for educational, bar review and job search purposes only. Participation requires completing a registration form to obtain a new Lexis Advance ID.

Finally, the ASPIRE access for public interest program offers an alternative for students conducting verifiable 501(c)(3) public interest work to maintain access to Lexis Advance. Law Students and recent graduates need to complete a registration form and once approved will receive an ID. [JH]

Law Firm Adoption of eBooks

In April 2013, Bess Reynolds, Technical Services Manager, Library & Knowledge Management Dept., Debevoise & Plimpton LLP, conducted a survey on law firm eBook issues. 135 law firms participated. Bess presented and commented on the survey findings at the CALL/ACBD 2013 Annual Conference on May 8, 2013.

According to the survey findings, 26.9% (36 law firms) reported buying eBooks for firm attorneys in 2012. 43% (55 law firms) indicated having plans to buy eBooks in 2013. In response to the survey question "If you bought any eBooks, which vendors have you purchased from?" 48 law firms provided the following answers:

Vendor	Response Percent	Response Count
LexisNexis	45.8%	22
Thomson Reuters	22.9%	11
Wolters Kluwer	14.6%	7
CALI	0.0%	0
Other legal publisher	33.3%	16
Non-legal publisher	14.6%	7
Retail such as Amazon or Barnes & Noble	14.6%	7
Aggregator such as OverDrive or EBL	8.3%	4
Source: April 2013 law firm survey conducted by Bess Reynolds

I am very hesitant to conclude that LexisNexis is really leading the vendor pack in law firm eBook purchasing because it is unclear (to me, at least) whether some, many, most(?) of the 22 law firms that listed LexisNexis as a vendor did so because of the Company's problematic "free" eBook companion program for their print deskbooks. What is interesting, however, is that only four firm libraries are using an aggregator such as OverDrive which is the Lexis eLending platform for their eBooks. Do note that in a separate question, the survey found that 22.2% (30 law firms) have access to eBooks through another library.

The number of eBook titles, quantity of eBook copies, and/or actual or budgeted total costs for eBooks acquired by law firms was not asked in this survey. Hopefully, that will be addressed in a follow-up survey someday. At the moment, I doubt that data would be all that informative because the one takeaway from this survey is that our legal vendors' most important market segment, private sector law firms, find far too much wrong with current Law eBook schemes.

Bess' CALL/ACBD presentation, Land of Confusion: eBooks' Licensing Demystified, identifies a number of damn good reasons why law firms have not jumped on the Commercial Law eBook adoption bandwagon yet. Highly recommended. Her Law Librarian Manifesto for eBooks at slide 23 should be required reading for all commercial legal vendors attempting to sell eBooks to law firms. [JH]

A Starting Point for Evaluating Publisher and Distributor eBook Proposals

"At this point, it’s anyone’s guess what the vast and growing ebooks landscape in libraries will look like a year or two from now," writes Mirela Roncevic, "but as it stands right now, librarians need to keep up or they will remain behind." In Roncevic's ALA’s Ebook Platforms for Libraries: What it’s about and what it’s for she refers to her new work, Ebook Platforms for Libraries (ALA, 2013) [LLB post] as "provid[ing] a starting point from which [librarians] can embark on their institutions’ ebook ventures." Her post, however, also explains her technique for evaluating vendor and/or aggregator-distributor eBook offerings.

While Roncevic's analysis focuses on academic and general public libraries, both her new work and recent post are relevant for law libraries. Recommended. (Note to FTC, no review copy provided.) [JH]

Could ATL's Law School Ranking Unseat US News?

Not gonna happen. IMHO, the only way to reduce the impact the annual ritual known as the US News Law School Rankings is if the entire legal academy starts ignoring US News in law school marketing fodder. You think that is ever going to happen?

Here's an excerpt from the YouTube description of a BLaw interview titled "Could This Law School Ranking Unseat US News?":

Elie Mystal, editor at Above the Law, tells Bloomberg Law's Lee Pacchia that his blog's new law school rankings sought to list the top 50 American law schools by relying on an "outcome based" methodology. Mystal says that focusing on the costs and rewards of a legal education allows this ranking to determine which law schools yield "the most bang for this extreme buck."

[JH]

Friday Fun: How Many Times Has Star Trek's Mister Spock Been Quoted in Court Opinions?

Don't know but this could make a good research project for those law librarians looking to write something for possible tenure-recognition publication during their summer break. For starting purposes, Jacob Gershman cites a couple of instances at From Sacrifice to Rhetorical Device, the Spirit of Spock Lives On (WSJ Law Blog). 

What the heck, not all law librarianship scholarly research has to be a grind. This one could be fun and might be publishable for CV purposes in The Green Bag. NB: I didn't check to see if/when the topic might have be covered in a publication.

On a related note, Ilya Somin reports on Matthew Yglesias' Slate article, I Boldly Went Where Every Star Trek Movie and TV Show Has Gone Before, observing in this The Volokh Conspiracy post that "Matthew Yglesias has an interesting article reviewing all of the Star Trek and many of the movies from the original 1960s series to the present. He especially focuses on the series’ ideology and politics, and its 'utopian' vision of the future." [JH]

India Publisher Threatens $1B Lawsuit Against Colorado Librarian

Here we go again.  This time it’s a publisher out of India that is threatening to sue Jeffrey Beall, a librarian at the University of Colorado over characterizations he’s made on his Scholarly Open Access Blog.  That blog identifies, in Beall’s opinion, publishers that take advantage of academics needing a publisher for their papers.  Beall recently received a letter from representatives of OMICS Publishing Group threatening a lawsuit seeking $1 billion (not a mistake) in damages and possibly up to 3 years of prison time in India for violations of Section 66A of India’s Information Technology Act.  The Act makes it a crime by its terms to use a computer to publish any information that is grossly offensive or has menacing character.

An article in the Chronicle of Higher Education (this one is not behind a pay wall) offers some details of the letter:

The rambling, six-page letter argues that Mr. Beall's blog is "ridiculous, baseless, impertinent," and "smacks of literal unprofessionalism and arrogance." The letter also accuses Mr. Beall of racial discrimination and attempting to "strangle the culture of open access publications."

"All the allegation that you have mentioned in your blog are nothing more than fantastic figment of your imagination by you and the purpose of writing this blog seems to be a deliberate attempt to defame our client," the letter reads. "Our client perceive the blog as mindless rattle of a incoherent person and please be assured that our client has taken a very serious note of the language, tone, and tenure adopted by you as well as the criminal acts of putting the same on the Internet."

I did a search in WorldCat on OMICS as a publisher.  There were 334 records in the database.  305 of these were Internet links, 10 were serials, and only 2 were books.  The Edwin Mellen Press in contrast was better represented in worldwide library holdings.  Readers may remember that the EMP was one of the first publishers to take legal offense at how its business model was characterized by a librarian.  See LLB posts here, here, here, and here for coverage. 

The CHE article also posits potential results of any lawsuit based on whether a suit is brought in India or the United States.  A favorable outcome for Beall is likely in U.S. courts and uncertain in India’s courts.  There are issues as to whether a judgment in India against Beall could be enforced in the United States.  The numerous comments to the article speculate on that.

I have to believe these kinds of threats will do little to change any impression of OMICS and more likely draw attention to their publications and practices.  I can’t comment on whether or not they are respectable publisher.  As with the Mellen Press, I had never heard of the publisher until it threatened suit.  I know who OMNICS is now.  I’ll be following this one as the situation develops.  [MG]

11 Key Takeaways from Pew Internet's Research on the Changing Role of Public Libraries and Library Users in the Digital Age

News to me but then I rely upon AALL's Washington Blawg for legislative lobbying info (NB, perhaps I missed it) but apparently May 7th was National Library Legislative Day (ALA). Anyway, on that day, Lee Rainie, Director of Pew Research Center’s Internet & American Life Project presented to ALA The Power and Relevance of Libraries: Takeaways from Pew Internet research based on Pew's research activities which have been focusing on the changing role of public libraries and library users in the digital age for several years now.

Unlike many Powerpoint stacks, Rainie's takeway points are well documented and highly recommended. Public sector law librarians whose institutions are represented by AALL, meaning public law school and federal, state and county law libraries that are open to the public, may find Pew Internet's research takeways relevant.

A big hat tip to beSpacific's May 6, 2013 post. [JH]

For the "New Normal": Copyright in the Digital Era: Building Evidence for Policy

Hat tip to Gary Price for calling attention on LJ InfoDocket to the recently released National Research Council's Copyright in the Digital Era: Building Evidence for Policy (National Academy Press, 2013). From the Report's blurb:

Copyright in the Digital Era: Building Evidence for Policy examines a range of questions regarding copyright policy by using a variety of methods, such as case studies, international and sectoral comparisons, and experiments and surveys. This report is especially critical in light of digital age developments that may, for example, change the incentive calculus for various actors in the copyright system, impact the costs of voluntary copyright transactions, pose new enforcement challenges, and change the optimal balance between copyright protection and exceptions.

You can download a free copy in PDF format for personal use from the link embedded in the Report's title (above). Thanks Gary! [JH]

DOJ Files New Details In Apple e-Book Case

The Justice Department filed multiple documents on Tuesday in the Apple e-book case.  The most interesting of these are the Plaintiffs’ Proposed Findings of Fact and Conclusions of Law and Plaintiffs' Pretrial Memorandum of Law.  The documents are dated April 26, 2013 on the Department’s web site but were made public yesterday.  The lengthy documents describe the back and forth between Apple and the publishers where Apple acted as a conduit for information between each publisher in addition to the direct contacts the publishers made with each other over how to manage e-book pricing in the market.  It’s pretty substantial stuff.  Here’s an example from the Proposed Finding of Facts:

54. Publisher Defendants communicated to one another their plans to window specific titles, which they believed would pressure Amazon to raise its retail e-book prices. For example, in an August 14, 2009 e-mail to Hachette Livre CEO Arnaud Nourry, Hachette Book Group CEO David Young writes: “Completely confidentially, [Simon & Schuster CEO] Carolyn [Reidy] has told me that they are delaying the new Stephen King, with his full support, but will not be announcing this until after Labor Day . . . .” PX-0274.

55. In the same e-mail, Mr. Young criticized Random House CEO Markus Dohle as an “appeaser” for his refusal to window Dan Brown’s The Lost Symbol: “You should know that I have been told by a reliable source that the [internal Random House] publishers voted for the Dan Brown to be delayed but they were over-ruled by Markus who is apparently ‘obsessed’ by his desire to meet Jeff Bezos: why this should matter to him and what he thinks he would gain from such a meeting is beyond me. He appears to be an appeaser which is not good with them being the market leader. . . .” Id. Mr. Young’s “reliable source” was a senior Random House executive who subsequently joined Macmillan in the fall of 2009.

56. Mr. Young concluded this e-mail containing confidential information about Hachette’s competitors’ business plans by advising Mr. Nourry that he should permanently destroy the message: “I think it would be prudent for you to double delete this from your email files when you return to your office.” Id.

The document would be a good basis for a book or a movie.  The publishers were pretty open with each other about their antipathy to Amazon and its pricing practices.  They tried various strategies such as windowing titles to get Amazon to raise its prices, but mostly failed.  Apple came along and expressed a desire to not compete on price (Proposed Finding of Facts par. 107) with Apple pushing the agency model as a way to accomplish everyone’s goals.  It’s not merely a quote from Steve Jobs’ biography at issue here. 

These are interesting documents chock full of direct quotes from emails and depositions.  I’m sure Apple’s attorneys are smart enough to create a context that challenges the inferences from the filings.  One lesson stands out, and it’s an old one:  if one’s conduct is going to be legally questioned, one should try and minimize the documentation for that conduct.  Redundant back-up systems for email and other corporate documents sometimes may be our friend and sometimes be our enemy.  There’s a lot of electronic evidence in this case.  I hope we might see more of the documents at issue than merely those quoted by the Justice Department.  [MG]

Should Legal Vendors Provide More Information on How They Protect End User Privacy?

Jean O'Grady reports that Bloomberg reporters have had no access to BLaw usage data. This was confirmed on the heels of the news about long-term monitoring of subscribers Bloomberg Financial Services access. She added:

Law firm research queries are a treasure trove of leads... pretty innocuous standing alone - but probably an interesting "data map"  of law firm client support activity if  viewed in the aggregate. In 30 years I have never ever heard of a breach  or misuse of this kind of data at LexisNexis Westlaw, Wolters Kluwer or Bloomberg but I think it is time that these companies provide more information to customers about how they protect law firms and their clients from the threats of a "big data" hack.

We know that usage data is monitored internally by WEXIS and presumably BLaw. In some cases, it has to be for out-of-plan charges. However, each time one logs into a online search service, usage data is being recorded. We have even heard that Classic Westlaw use data was used to develop West Search for WLN. And what about our vendors' online news, analysis, commentary and research practice-centric services, workflow productivity and matter applications?

I think O'Grady has a point about our vendors providing us with information about how our user populations privacy is protected. I doubt Daniel L. Doctoroff's, CEO and President, Bloomberg L.P., Safeguarding Customer Data statement and/or Holding Ourselves Accountable by Matthew Winkler, editor-in-chief of Bloomberg News, is sufficient. Both statements were reactions to the public disclosures about Bloomberg reporters past practices.

For much more, see O'Grady's Dewey B Strategic post, Bloomberg Law Not Impacted By Bloomberg Terminal Privacy Breach. But Can We Ever Stop Worrying About a "Big Data" Hack of a Legal Research Provider? [JH]