April 21, 2012
Is the ABA Journal Trying to Persuade Just for Men to Advertise?
From the ABAJ news website. And "yes, I like my gray hair and let it show" because I've earned every damn strand of gray hair on my aging and decrepit head. [JH]
|Screen capture taken on April 16, 2012.|
April 20, 2012
Tuning In to This Afternoon's LawLibCon Podcast: Law Libraries + Law Journal Publishing plus Bloomberg Law BNA featuring Lou Andreozzi
Today's Law Librarian Conversations podcast offers to be very interesting in part because Lou Andreozzi, Chairman of Bloomberg Law, will discuss the new roll-out of BLaw to law schools and the integration of BNA content into BLaw's now "turbocharged" online research and current awareness service. As most everyone paying attention to this matter knows by now, integration of BNA content into BLaw is well underway. Some content, most notably BNA Tax, is not online yet but will be. Complete integration is expected by the end of the calendar year, if not sooner.
There was a time when a CEO (now departed) informed participants in an earnings report conference call that BLaw's strategy appeared confusing. Still confused Thomson Reuters? Not yet obvious? Tune in to today's podcast!
Licensing of BNA online resource libraries outside of BLaw's online service remains an available option for institutions and individuals who do not want to or have not yet been offered a license for BLaw. BNA resource centers have been receiving a noticeable "beefing up" of content and additional formats of content (e.g., video) to existing resource centers as well as the launching of new ones. Clearly this is due in no small part to the financial resources Bloomberg Law is investing in this product line.
Lou Andreozzi's participation in today's podcast was announced yesterday (hence the italics in this post's title). But let's not forget that Michelle Pearse, Ben Keele and Valeri Craigle will be discussing "ways that law libraries and law librarians are uniquely equipped to help academic law journals become all that they should become in the digital world. The missing link in the Durham Statement has always been how law journals should become digital, and, in the process become better and more useful." That too offers to be a very interesting topic for the panel discussion.
LawLibCon's podcast will start at 2:00 PM Central Time this afternoon. Details here. [JH}
Friday Fun: Libraria: Exams to close for comfort
April 19, 2012
Meet Microsoft Academic Search, Redmond's Quiet Answer to Google Scholar
Did anyone know that Microsoft has an alternative to Google Scholar? I didn’t either until I stumbled across it a little while back. Welcome to Microsoft Academic Search. As of today, it invites one to explore 38,835,423 publications, 19,159,815 authors with 1,587 updates from last week alone. That, out of context, sounds impressive. Search the phrase “critical race theory” in MS Academic Search and a very well laid out screen returns a list of 178 publications. A comparable Google Scholar search brings up 19,400 hits, not that I as a researcher would explore so many. One of the reasons Microsoft lags in results is that it does not index legal publications much. The site boasts a list of domains which are information subject concentrations. Social science exists but law or legal is not covered.
The citation list in MS Academic Search brings up hits with links to a source for the article, if available. The initial list does not provide any snippet views of the article content. However, clicking on the title will lead to a graphical view of citations, where available, and a snippet view of citations to the main article. The graph indicates the yearly citation trend in lines covering the number of citing publications and the number of citations to the main article. The listed citations below the graph are clickable to reveal abstracts of these citing articles with links to full text, again, where available. There is an export button allowing one to download an article citation in a standard bibliographic format as well.
I can’t say that MS Academic Search is less valuable than Google Scholar merely in terms of the comparable number of citations returned. I think Google Scholar’s real advantage is that the snippet view of search terms on the initial screens is more useful in determining whether a hit is worth exploring. Microsoft seems to rely strictly on the title as a signal for relevancy. On the other hand, the interactive qualities of the site run rings around what Google provides in its take it or leave it display of results.
I’d advise checking out the site. The help screen gives a lot of detail as to the capabilities of Academic Search. The site has been around since December of 2009, which shows the non-existent marketing push Microsoft has made promoting it. Google could learn a thing or two from the presentation and manipulation of results. The lack of legal periodical coverage is a distinct disadvantage for law reference work. It may still have value as a resource nonetheless. Microsoft did blatantly copy one Google feature. The site is listed as “Beta.” [MG]
Please Respond Off List to This eLaw ILL Request: How Institutionalized are Model License Use Terms?
Kristin R. Eschenfelder, Tien-I Tsai, Xiaohua Zhu and Brenton Stewart, University of Wisconsin-Madison, School of Library and Information Studies, offer a timely analysis of eJournal license use rights clauses from 2000-2009 in College & Research Libraries.
From the abstract of How Institutionalized are Model License Use Terms:
This paper explored the degree to use terms proposed by model licenses have become institutionalized across different publishers’ licenses. It examined model license use terms in four areas: downloading, scholarly sharing, interlibrary loan and electronic reserves. Data collection and analysis involved content analysis of 224 electronic journal licenses spanning 2000–2009. Analysis examined how use terms changed over time, differences between consortia and site license use terms and differences between commercial and non-commercial publisher license use terms. Results suggest that some model license use terms have become institutionalized while others have not. Use terms with higher institutionalization included: allowing ILL, permitting secure e-transmission for ILL, allowing e-reserves with no special permissions, and not requiring deletion of e-reserves files. Scholarly sharing showed lower institutionalization with most publishers not including scholarly sharing allowances. Other use terms showing low institutionalization included: recommendations to avoid printing requirements related to ILL, and recommendations to allow hyperlinks for e-reserves. The results provide insight into the range of use terms commonly employed in e-journal licenses.
Instead of principles, how about model license clauses? The above research report is highly recommended for lessons that can be learned if our professional association wants to "interfere" in the vendor-institutional buyer contractual relationship by developing model license use terms that address the current business model for licensing all forms of law eContent (albeit unenforceable on the vendor community but loop back up to the study's findings). Note well that the the typical AALL or AALL chapter member's response to listserv eText ILL requests after AALL's nationwide official web communications clamp down because one unnamed vendor threatened to sue everyone's ass has become "please respond off list." Well, pirates we may be but at least this approach "permits" secure e-transmissions for fulfilling ILL requests.
Great way to "advocate" the case for fair use of licensed eLaw resources AALL under Principles for Licensing Electronic Resources (Adopted November 2004):
A license agreement should recognize and not restrict, abrogate or circumvent the rights of the licensee or its user community permitted under copyright law, including but not limited to the fair use provisions of Section 107 of the U.S Copyright Act (17 U.S.C 107) and the interlibrary loan provisions of Section 108 of the U.S. Copyright Act (17 U.S.C. 108).
Instead AALL's Principles for Licensing Electronic Resources warns
In the area of licensing electronic resources, failure on the part of the licensee to read and understand the terms of the agreement may result in such unintended consequences as:
• the loss of certain rights to uses of the resource that would otherwise be allowed under the law (for example, in the United States, such uses as fair use, interlibrary loan, and other library and educational uses);
Don't you just love how this document is stored in the "Advocacy" subdirectory of our professional association's website. But I digress, or do I?
What the heck. In the March 2012 AALL eNewsletter comes this report from AALL's President:
Task Force on Library Procurement Process Opens Survey
Recently, I appointed the Library Procurement Process Improvements Task Force to address one of the outcomes from the Vendor Colloquium Action Plan. As part of its work, the task force has developed a 10-minute survey to gain additional feedback from AALL members. The results from the survey will help identify areas of high priority as the task force continues to review the Final Report of the Special Committee on Licensing Principles for Electronic Resources and creates a checklist based on these principles to serve as additional guidance in the library procurement process.
Wow! It really looks like AALL has been up to something. At least that is how it appears until you click on the above cited "Final Report" because it is dated 2004. That eight year old report which apparently is now being reviewed served as the basis for AALL's Principles for Licensing Electronic Resources (2004). Perhaps in AALL-land nothing has changed since 2004 so that "Final Report'" use as the basis for additional work is OK.
Do we really need a "checklist" based on 2004 principles? Wouldn't model licensing clauses based on issues presented by current vendor licencing boilerplate terms and conditions of use for all legal eTexts be more useful for member institutional buyers? At least that is a viable work-around vendor NDAs.
Aternatively, perhaps the Final Report is just a bad link that wasn't caught by whomever checks the eNewsletter issue before it is released, assuming of course, that someone actually does that. Hell if I know. [JH]
April 18, 2012
Supreme Court Action Today: What Is an Individual Under the Torture Victim Protection Act, and New Evidence in Patent Appeals
The Supreme Court issued two more opinions this morning. The first, Mohamad v. Palestinian Authority (11-88), concerns whether an action under the Torture Victim Protection Act of 1991 (TVPA) can be sustained against defendants which are organizations. The Act authorizes a cause of action against “[a]n individual” for acts of torture and extrajudicial killing committed under authority or color of law of any foreign nation. The relatives of the decedent in the case, a naturalized United States citizen, sued the Palestinian Authority for the actions of its intelligence officers. The District Court dismissed the suit as the Palestinian Authority is not an individual as defined by the Act. The Court of Appeals for the District of Columbia affirmed that decision.
The Supreme Court affirmed, holding that the term “individual” in the language of the Act means only natural persons. The language of other federal statutes makes clear the distinction between individuals and including entities in that context. Congress is capable of making those distinctions when it intends to apply legislation beyond the ordinary meaning of words. The Court rejected several arguments that attempted to read the term “individual” here in a broader context. I suppose that is the difference between corporations being treated as a person compared to this case. The Court said the plain meaning of the statute precluded a need to examine the legislative history, but examined it nonetheless. It concluded that if it needed to examine the legislative history, which it didn’t, mind you, that examination would support its holding. The Court was equally unsympathetic to the argument that a ruling against would leave the relatives without a remedy.
Justice Sotomayor delivered the opinion for a unanimous Court. Justice Scalia declined to join Part III-B, the section covering the legislative history, presumably because he disagrees with the use of legislative history. Justice Breyer filed a concurring opinion.
The second opinion is Kappos v. Hyatt (10-1219). It’s a patent case and it involves whether an applicant can present evidence of patentability that had not been presented in the administrative process to the courts in a civil action against the Director of the Patent and Trademark Office. There are several paths to appealing an unfavorable ruling in a patent application under the Patent Act. One is to appeal to the PTO Board of Patent Appeals and Interferences (§134), and then to the Court of Appeals for the Federal Circuit (§141). The alternative is to sue the PTO Director in a civil action under §145. The Act specifically allows the plaintiff to present evidence not presented to the PTO.
In Hyatt’s §145 suit, he presented new evidence, but the District Court limited its examination to administrative record under the “substantial evidence” standard under the Administrative Procedure Act (APA) and granted summary judgment to the Director. The Court of Appeals for the Federal Circuit reversed, holding that new evidence presented under §145 was limited only by the applicable Federal Rules. The Supreme Court affirmed the Court of Appeals, holding that the language of §145 was clear and that the APA does not apply in this situation. The language of §145 had not changed much since it was passed in 1870. Court decisions under §145 are resolved in favor of a District Court using a de novo approach to consider evidence in these type of cases. The Court did say, however, that the District Court could consider whether the plaintiff had the opportunity to present the new evidence to the PTO and what weight to afford it.
Justice Thomas delivered the opinion for a unanimous Court. Justice Sotomayor filed a concurring opinion joined by Justice Breyer. [MG]
UConn Law Library Turns Into an "Inferno" During Recent Heat Wave
"It’s almost like UConn Law is trying to start a trend in dropping it like it’s hot. First, they dropped six spots in the U.S. News rankings, then they dropped Dean Jeremy Paul, and now they’re asking law students to drop trou in the library due to unseasonably warm temperatures and their inability to turn off the heat," reports ATL's Staci Zaretsky. A tipster described UConn’s law library as an “inferno.”
Why? According to an email sent out by the law library:
[T]he air conditioning unit is not ready to be turned on.
Please note that the air conditioning in the Law Library is much more complicated to turn on than simply flipping a switch to your home air conditioning unit.
The weather report indicates that air temperatures will return to what is considered normal for the month of April on Wednesday 04/18/12. With this in mind, please dress for warmer temperatures while on campus both today [April 16th] and tomorrow.
In her April 16th ATL post, The Only Thing That’s ‘Hot’ at This School Is the Temperature, Staci Zaretsky advised law students who may have been cramming for exams in the law library, "Of course, you could also leave the library — it’s UConn, not Yale." The weather forecast for Hartford, CT is looking better for today. [JH]
Will General Trade Publishers Kill DRM to Break Amazon's Death-Grip on Consumers and the Publishing Industry?
In What Amazon's ebook strategy means, Charlies Stross writes that "[b]y foolishly insisting on DRM, and then selling to Amazon on a wholesale basis, the publishers handed Amazon a monopoly on their customers—and thereby empowered a predatory monopsony." In view of the DOJ antitrust lawsuit, Stross thinks
If the major publishers switch to selling ebooks without DRM, then they can enable customers to buy books from a variety of outlets and move away from the walled garden of the Kindle store. They see DRM as a defense against piracy, but piracy is a much less immediate threat than a gigantic multinational with revenue of $48 Billion in 2011 (more than the entire global publishing industry) that has expressed its intention to "disrupt" them, and whose chief executive said recently "even well-meaning gatekeepers slow innovation" (where "innovation" is code-speak for "opportunities for me to turn a profit").
And so they will deep-six their existing commitment to DRM and use the terms of the DoJ-imposed settlement to wiggle out of the most-favoured-nation terms imposed by Amazon, in order to sell their wares as widely as possible.
If they don't, they're doomed. And all of us who like to read (or write) fiction get to live in the Amazon company town.
I would like to hope that the general trade publishing industry moves to a DRM-free eBook business model based on an ownership model instead of a licensing model but I have my doubts. The industry can escape the the death-grip Amazon has on both consumers and themselves by concentrating their sales efforts on their own eCommerce sites while preserving DRM like legal publishers of eBooks do on an exclusive basis for individual consumers. Why not eliminate the middleman and offsource tranactions to India (or China) to reduce the cost of direct sales.
For additional commentary and analysis on LLB, see Mark Giangrande's Some Thoughts on the DOJ Lawsuit Against Apple and the Publishers. [JH]
April 17, 2012
Supreme Court Action Today: Generic Drug Manufacturer Rights Under Statutes, and Tort Immunity For Temporary Government Employees
The Supreme Court issued two opinions today. One of these should affect the pharmaceutical industry in a big way. The case is Caraco Pharmaceutical Laboratories, Ltd. V, Novo Nordisk A/S (10-844). The case describes the highly complex system used by the FDA to license drugs under patent protection as well as generics that may be sold as well. The Court describes the case as arising under a complex statutory scheme. Brand manufacturers submit statements to the FDA consisting of a drug’s components, scientific information that shows the drug is safe and effective, and a list of uses that will appear on the labels for marketing purposes. Generic manufacturers can use this information to seek permission to sell a competitive version under legislation enacted by Congress.
Permission, however, cannot violate patent law. In this case, the patents at issue concern the uses the brand manufacturer claim for the drug. The legislation that allows for generics requires the brand manufacturers to file patents, the dates of expiration, and the claimed uses of the drug under those patents. These are called “use codes.” These are published, which gives the opportunity for generic manufacturers to submit similar statements about their drugs and that they do not violate existing patents or claimed uses. The FDA does not verify initial claims by brand manufacturers.
One of the statutory options for generic manufacturers allows them to assert that the patent is invalid or that they will not be infringed by the manufacture and marketing of the generic. This almost always results in litigation between companies. Congress addressed this situation by creating a counterclaim under the statute that allows a generic manufacturer to require the brand manufacturer to correct or delete the initial patent information submitted to the FDA.
This case arises out of circumstances where a generic company relied on a brand manufacturer’s use codes to market its drug. The brand manufacturer decided to change its use codes to effectively claim the use identified by the generic maker, thus triggering the generic company to use the statutory counterclaim to limit the patent claims on file with the FDA. The generic won at trial but lost at the appellate level on the way the Circuit Court of Appeals for the Federal Circuit read the statute. It held that the counterclaim was not available as long as any use code was valid.
The Supreme Court reversed. Using principles of statutory construction, the Court read “not an” in regard to the initial claims, to mean not any specifically claimed use, compared to the alternative, which would have allowed brand manufacturers to claim all possible uses by claiming any individual use. The case is complicated by the statutory background and the development of the facts in this case. The Court, however, relied on the purpose of the statute, the history of developments that prompted Congress to act, and intervening cases of which Congress had knowledge in passing the statute to reach its construction.
The opinion is some 24 pages though the result is clear. Generic drug manufacturers may sue brand name drug manufacturers to correct false information. I assume that brand name manufacturers will now claim every possible use of a drug up front or lose some possible therapy options to generic drug makers. For all of its complexity, the Court was unanimous in its ruling. Justice Kagan delivered the opinion with Justice Sotomayor filing a concurring opinion.
The second case is much simpler. It is Filarsky v. Delia (10-1018), and it involves whether a private party working for the government has any claim to immunity from a §1983 suit as a result of that work. Delia was a firefighter in Rialto, California who was on an extended absence from his job from illness. The city became suspicious after Delia was seen buying building supplies. It hired Filarsky, a private attorney, to interview Delia. Filarsky demanded that Delia produce the materials. He did so grudgingly and ultimately filed a §1983 suit contending that forcing him to produce the materials violated his Fourth and Fourteenth Amendment rights. The District Court granted summary judgment to all defendants on the grounds they had qualified immunity. The Ninth Circuit affirmed to all except Filarsky, justifying its decision on his status as a private attorney.
The Supreme Court reversed, holding that Filarsky, by virtue of his employment by the city, was entitled to the same immunity. The Court reasoned that the common law existing at the time §1983 was passed did not distinguish between full-time government employees and those performing part-time service to the government. As such, Filarsky was entitled to the same immunity as government employees. Chief Justice Roberts delivered the opinion for a unanimous Court. Justices Ginsburg and Sotomayor filed concurring opinions respectively. [MG]
An Illustration of BLaw-BNA Content Integration: Does the Petition Clause guarantee a right of reasonable access to the government for a redress of grievances?
In a recent New York Times op-ed piece, Ronald J. Krotoszynski Jr., John S. Stone Chair and Professor of Law at University of Alabama Law School, wrote
Unfortunately, the Supreme Court has not accorded the Petition Clause much legal significance. When litigants have pressed Petition Clause claims, the justices have noted that all First Amendment rights are “cut from the same cloth” and thus “are inseparable.”
However, in Borough of Duryea v. Guarnieri, a Petition Clause case decided last year, Justice Anthony M. Kennedy wrote that there could be cases “where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis” and where the rights of petition and free speech “might differ in emphasis and formulation.”
One of the issues in Borough of Duryea v. Guarnier, 131 S. Ct. 2488, 180 L. Ed. 2d 408, 190 LRRM 3217, 32 IER Cases 481 (2011) [2011 BL 161237] [SCOTUSblog case archive] was whether or not the Petition Clause encompasses petitions seeking redress of private grievances in the context of an employment retaliation claim by a public sector employee against his employer. See Daniel Bell's Argument preview: A tale of two clauses on SCOTUSblog. In an 8-1 decision, SCOTUS rejected the argument the Petition Clause protects such grievances. In Opinion analysis: Limits on “Petition Clause”, SCOTUSblog reporter Lyle Denniston noted
Kennedy [who delivered the opinion] suggested that the Petition Clause, based on its illustrious history going back to Magna Carta in 1215, has probably served the public interest more often when the complaint to the government (or the Crown) was on a matter of “interest to the community as a whole.” When a public employee joins in that kind of appeal to government, with a grievance that might well be shared by other citizens as citizens, the employee can exercise the same right as private citizens, the Court made clear. But if the public employee is only challenging an action taken against him or her in her employee capacity, that is beyond what the Clause will allow, the Court emphasized.
For Krotoszynski, author of Reclaiming the Petition Clause: Seditious Libel, "Offensive" Protest, and the Right to Petition the Government for a Redress of Grievances (Yale UP, 2012), Borough of Duryea v. Guarnier "suggests that the court could be sympathetic to carefully devised arguments focused on the right to petition." Interesting. Krotosynski new book also sounds interesting.
BLaw-BNA Content Integration. What got my attention in performing some background research on Krotoszynski's op-ed piece because, well, I'm a law librarian (or because, well, I am easily distracted), is that the SCOTUSblog link to the BLaw-open-access to the Borough of Duryea v. Guarnier opinion illustrates how Bloomberg Law is integrating BNA editorial content into its research service.
BNA headnotes with embedded BNA topical classification number links are provided. See image, above right, click to enlarge. The embedded links did not work for me at home (no login prompt), nor at work where I have IP-authenticated access to Bloomberg BNA's Labor & Employment Law Resource Center. But I didn't expect the links to work because of how their URLs display on SCOTUSblog. Beyond SCOTUSblog, my hunch is the links send users to BNA's classification system from within BLaw's online service if one has a license for BLaw. At least, that is what I would expect to see.
Is that how it works?
My bad, no short-term memory left.
I guess the moral of this story is that until BLaw starts pitching sales below the high end of the private sector institutional food chain and academic libraries, the "rest of us" -- med-small law and the public sector -- will only know what's going on with BLaw by way of press releases and second-hand reports from licencees -- some of which offer no professional critical assessment of AALL's 2012 New Product of the Year Award winner. But see Some Quirks in the BNA BLAW Content Merger (academic law librarian) and Bloomberg Law – Same Kool-Aid, Different Flavor (law firm librarian?).
Hey Lou, still not ready to unlease the rest of BLaw-BNA's sales force?
Endnote. Because some folks are asking, "What's next for BNAConvergence?" [JH]
April 16, 2012
Google's Latest CAPTCHA Codes Draws Criticism
Here’s a little bit more from the technology front. Google has been accused of another privacy violation. Any tech company that owns a user base numbering in the billions can make a move that draws criticism. Sometimes that criticism is valid, and sometimes not. Take, for example, Google’s latest twist on CAPTCHA technology. We’re used to the string of characters in twisted fonts and colors as a way to distinguish between humans and machines. Google added words sourced from scanned books as a way of improving the text presentation of those titles. Now, the latest twist is to use address numbers drawn from pictures of houses snapped in creating the street view in Google Maps.
Big Brother Watch is not very happy about this development, calling it a serious privacy issue by identifying the individual number of people’s homes. Google is accused of furthering its own interests (gasp!). Google responds that there is no identifying information that ties a picture to an individual, particularly as the pictures are close cropped to the number in question. Techcrunch has some examples here. I would be surprised if anyone can identify the geographic locations of the sourced numbers from the presentation. Yes, Google knows where they come from, but they are not telling. They use the crowd-sourced information to create a more accurate version of Google Maps. I think we are well past the point where Street View is in its generic form a privacy violation.
One comment (quoted in the Telegraph) from Nick Pickles, Big Brother Watch director of privacy and civil liberties is "The 'Don't be evil' mantra appears to have been replaced with a thirst for knowledge." I hardly ever conflate collecting public information with evil. There is no doubt that some of the things Google has done with Street View are unsettling. The “accidental” collection of unprotected Wi-Fi data by some of the collection vehicles is one, as is initially not blurring individuals captured in embarrassing situations. The law, if not common sense, has prevailed in those situations. Using cropped images of house numbers or street signs as CAPTCHA codes is not one of those things that would make me scared of Google. [MG]
Managing a Library's Electronic Collection: The Long March to an Integrated Discovery and Access Platform
The Douglas County (Colorado) public library system has developed a solution for discovering and lending eBooks. Monique Sendze, Associate Director of Information Technology at Douglas County Libraries, describes the project in detail in her article The E-Book Experiment, Public Libraries (January/February 2012). Buy-in from major trade publishers, some who do provide lending rights for eBooks and most who don't, has not be forthcoming. One issue appears to be that the publishing community does not want to sell to individual libraries, preferring instead to sell to wholesalers like OverDrive because of the administrative overhead of engaging in direct sales. The Douglas County Libraries, however, estimates that self-hosting eBooks is saving about a third of the cost of licensing the same titles from wholesalers.
Cost savings, however, are not the only issue. Discovering eBooks in a collection present a serious problem for patrons.
Libraries want to provide e-books through a single, easy-to-use, easy-to-search platform. Unfortunately, that may never happen. Vendors continue to create their own distinct platforms: OverDrive, Baker & Taylor, Simon & Schuster, 3M, ProQuest, EBSCO, etc. Libraries are expected to present all of these platforms to patrons in a way that makes sense, which is near impossible.
Let's add the article observes that the trend in self-published eBooks have been growing exponentially and those eBooks are not captured by traditional distribution channels which now only account for 12 percent of new content. Then there are the problems that arise from the current eBook licensing business model for library collection development planning.
[Douglas County Libraries] immediate goals to improve the library e-book user experience include:
to enhance the discovery of e-books with VuFind library catalog software;
to simplify the delivery and circulation of e-books with Adobe Content Server (ACS); and
to challenge a business model based on content license, with one based on content purchase.
Library staff have developed software to optimize the e-book user experience; implemented Adobe Content Server to store and deliver e-books that require DRM; and begun working with publishers to develop an e-book purchase model that will fairly compensate writers and publishers, while meeting the expectations of library users.
On ALA TechSource, Patrick Hogan reports:
the Colorado State Library will soon be launching a website so that the library community can access information such as technical documentation, presentations to the board, and usage data as it becomes available. A number of state libraries and consortia have expressed interest and are watching Douglas County as a model.
For much more, see Sendze's The E-Book Experiment. Highly recommended. One day, law libraries will be dealing with the same issues public libraries are addressing now.
Obviously, law libraries haven't reached the critical mass of issues about law eBooks yet. Hell, we only have one vendor that is even offering a circulation solution so far. But eBooks titles offered by ABA, CCH, Lexis, TR Legal, university presses, etc., are raising the issue of how institutional buyers are going to manage their eBook content by way of a unified discovery and access platform that is library-centric.
The Douglas County Libraries is be a model for self-hosting eBooks obtained from multiple publishers. The most serious drawback is in-house development, implementation and maintainance costs. The economy of scale makes sense for the Douglas County library system. It's seven libraries serve a population of close to 300,000 and is considered one of the busiest libraries in the United States with more than eight million items checked out annually.
Perhaps if the Long Count Calendar marks the start of a new cycle on Dec. 21, 2012, some enterprising garage techie will craft an attractive cloud based commercially available in-house discovery and access interface solution for all electronic content from licensed legal search database service that access content at the database specific level to eNewsletters, eJournals and eBooks which are not isolated by the multiple platform silos of individual vendors and their bundles. This, of course, is not part of the strategic objective of any legal publishing vendor.
Sometimes we discard the old because it no longer is relevant. Other times it is worth the fight to preserve the old by embracing new technological solutions. In the database era, we gave up on the notion of "library stacks" holding some of our major resources, relying instead on vendor-specific interfaces of menu options for database selections. The menu has been replaced with today's legal search model of internal federated searching with filter option. Now come law eBooks. If law librarian do not want to hand over discovery and access of them to multiple vendor-specific platforms, they will have a fight on their hands because the vendor community's objective is to preserve its own silos by a user account dashboard model that offers only its content and solutions (including research) and ultimately eBooks. At issue for librarians is whether or not we can succeed in creating an interface similar in purpose to print era stacks for users to discover and access all of our eHoldings. [JH]
April 15, 2012
Some Thoughts on the DOJ Lawsuit Against Apple and the Publishers
Now that the dust has settled on the lawsuit filed against Apple and five of the major publishers, the commentators have come out in force. The line-up of opinions seem to be, on one side, that the suit is ill-advised as the wholesale model used by Amazon and apparently favored by the Justice Department will destroy the publishing ecosystem as we know it. That’s because Amazon (90% market share at least two years ago) could easily prevent new entrants to the e-book market with predatory pricing.
As the New York Times puts it, “Previously, Amazon’s $9.99 subprofit price was a virtually impenetrable barrier to entry for anyone who couldn’t afford to lose millions in order to gain market share.” It would seem the only way for the market to grow, at least from this point of view, is if everyone charged the same price. The Justice Department alleges that Apple’s contract with the publishers using the agency model did just that. Not only did the agency model give Apple the lowest price, it effectively forced the same selling price on every distributor. This effectively forced Amazon to raise prices for consumers.
One of the fears expressed by publishers is that the $9.99 price point would stick with consumers and market forces would prevent them from effectively raising prices down the line. I’m not so sure about that. It’s well known that Amazon was pricing books at that level as a loss leader to build overall sales and customer loyalty. The publishers weren’t necessarily losing money as Amazon made up the difference between cost and sales as a matter of doing business. I suppose the publishers could raise wholesale prices and let Amazon decide if it wanted to raise prices as a result. I agree with the Times about new competitors having no incentive to entering such a market. However, the Justice Department is not bringing a predatory pricing action against Amazon. At least not yet. But there are options for other existing competitors in the market that can compete with Amazon if they want to.
The Guardian (UK) takes the point that this fight is less about book pricing than competing distribution channels with the publishers caught in the middle:
Although in many ways not at all surprising – the justice department is after all representing the interests of consumers – the antitrust initiative reveals a fundamental problem with market regulation in a converging world. What we have seen on both sides of the Atlantic, and in any market where groups of services are offered by the same distributor, is that each will ruthlessly cut the price of that which is of least value to it to attract customers. A classic example of this might be that Sky would offer cheaper broadband to customers who take its exclusive sports packages, while BT might offer cheaper TV services to retain broadband and telephony customers.
Books, then, are merely one of the commodities that sell iPads and Kindles, which are in turn gateways to more sales of other digital commodities to consumers. I take it from this point of view that the pixilated word, which allegedly has the power to move and stimulate the soul, is merely a vehicle to lock consumers to one distributor or another. I’ll take a side view that the mass marketing of books, music, and video is less about art than the various content providers would like us to believe. The same argument that suggests it’s all about the protecting the artists and authors belies the fact that the producer/distributor is notorious for seeking product that sells in a big way. Big content takes very few chances in picking the creators of that content to fill out the catalog. If publishing houses are patrons of art, art is surely limited to what is saleable and widely commercial.
I think the publisher’s bigger problem is not what Amazon charges for an e-book. Rather it is the fragmentation of the technologies that allow for mass distribution of online content. Apple has iOS. Google has Android. Amazon has a different flavor of Android. Microsoft is getting into that game by transforming Windows into the Metro interface with its own content store. A consumer picks one and all the digital content is formatted (or DRM’d) for that platform and can’t be easily transferred to another.
I’m aware that Amazon has a Kindle app for the iPad which in theory renders part of this format lock-in moot. At least until Apple uses the power of its closed system (the walled garden, as it were) to insist on 30% of the take for sales made through that app. I’m not suggesting this is wrong on the part of Apple. It’s market power and a form of competition. The reactive competitive action in this case takes the form of Amazon writing an HTML version of its e-book reader that runs through the iPad browser rather than as an app. And it will go on.
Given this landscape, what I think is happening here is that Apple simply doesn’t want to get into a pricing war with Amazon. The most favored nation clause in Apple's contract with publishers was a way to avoid that and preserve book sales on the iOS platform. As Google plans to create Android tablets, and as Microsoft’s Metro tablets and phones penetrate the market, so will their stores. These billion dollar entities can decide whether they want a price war on digital goods to promote their platforms. That’s the marketing world the publishers face. It’s time they should get used to it. Consumers are buying Apple, Amazon, Microsoft, and Google. Content, sadly, is secondary. [MG]
Round-Up of Law Practitioner Blogs
California Police Brutality Lawyer Blog
Examines police brutality cases, news, and related topics in California. Published by Okorie Okorocha
Immigration Las Vegas Blog
Discusses immigration cases, news, and related topics in Nevada. Published by Goodin Law
Palm Springs Tax and Trust Lawyers
Examines tax and trust cases, news, and opinions in California. Published by Sanger & Manes
Insurance Lawyer Blog
Examines insurance cases, news, and related topics in California. Published by The Brod Law Firm.
Alpharetta Attorney Blog
Examines family as well as injury cases, news, and other legal topics in Georgia. Published by Law Offices of Daniel W. Mitnick.