Law Librarian Blog

Apple And Publishers To Settle e-Book Case In Europe

The European Commission has posted some details of a proposed settlement between it and Apple and four publishers over the switch from the wholesale model to the agency model.  The Commission investigated whether this violated competition rules for Europe.  From the Press Release:

The Commission considers at this stage that these companies may have breached EU antitrust rules that prohibit cartels and restrictive practices by jointly switching the sale of e-books from a wholesale model to agency contracts containing the same key terms (in particular an unusual so-called "Most Favoured Nation" – MFN – clause for retail prices). The agency model allows more control by publishers over retail prices. The Commission has concerns that this switch may have been the result of collusion between competing publishers, with the help of Apple, and may have aimed at raising retail prices of e-books in the EEA or preventing the emergence of lower prices.

In the proposed commitments, the five companies offer to terminate existing agency agreements and refrain from adopting price MFN clauses for five years. In case any of the four publishers would enter into new agency agreements, retailers would be free to set the retail price of e-books during a two-year period, provided the aggregate value of price discounts granted by retailers does not exceed the total annual amount of the commissions that the retailer receives from the publisher.

The Wall Street Journal reports on the issue and notes that Apple and Macmillan would rather fight it out in the United States rather than settle:

The offer is notable because Apple and one of those publishers—Macmillan—have refused to sign on to a similar settlement in the U.S., where they are gearing up for a court fight with the government over allegations they colluded to fix prices.

The discrepancy raises the prospect that booksellers in Europe will be allowed to discount books by Macmillan in particular, whereas U.S. retailers will not. Macmillan declined to comment on the reasons for its differing legal approaches.

Those differing legal approaches may be related to the differences between the e-book market in Europe and the United States.  Here are excerpts from the Publisher’s Weekly report The Global eBook Market:  Current Conditions and Future Projections 2011:

Emerging ebook markets outside of the US and the UK are all estimated to currently represent at best 1 percent of the overall book market, making projections of future dynamics of growth extremely difficult. (And China is a different case altogether, with the prominent placement in China of mobile platforms.)

* * * *

How the American market picked up speed all of a sudden in fall 2010 to achieve the first double-digit market share in the key segment of bestselling fiction is a lesson to bear in mind for 2012 and 2013 – not for all of Europe, but at least for Germany and France. Yet with both specific factors shaping markets and reading cultures, a simple rerun of the American experience seems rather unlikely. In a global perspective, and with a horizon of the next three to five years, a more complex picture seems more realistic, with a handful of different patterns emerging, some more closely connected to global integration, and others – by cultural separation and through regulations – going digital at a slower pace.

My guess is there wasn’t enough profit in the European e-book market to make a fight with the EU worth the trouble to Apple and the publishers.  The United States, on the other hand….  [MG]

Colbert Interview With Jeffrey Toobin

I wrote briefly yesterday about Jeffrey Toobin's book, The Oath, in relation to a post on Justice Scalia.  Mr. Toobin was a guest last night on the Colbert Report.  I couldn't let that one go by.

The Colbert Report	Mon - Thurs 11:30pm / 10:30c
Jeffrey Toobin
www.colbertnation.com
Colbert Report Full Episodes Political Humor & Satire Blog Video Archive

[MG]

More on Justice Scalia

I’ll add a little bit to Joe’s post on Justice Scalia, Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."  The Hill is reporting on Jeffrey Toobin’s new book, The Oath.  He describes Justice Scalia as “furious” and “enraged” that Chief Justice Roberts changed his vote on the health care decision.  The book describes the ideological struggle on the Court to revise constitutional analysis.  But there is more. 

The recent book by Justice Scalia and Bryan Garner, Reading Law: The Interpretation of Legal Texts, has received criticism by a number of individuals.  One of those critics, Judge Richard Posner, apparently stung Justice Scalia enough to respond.  The Chicago Tribune describes Posner of accusing Justice Scalia as “making flawed arguments based on sloppy research.”  Scalia struck back yesterday by saying "You can get away with it in The New Republic, I suppose, but not to a legal audience."  Oh, I don’t know.  I think anyone can say anything to anyone.  Judge Posner is a known quantity where people take notice of his statements whether on or off the bench. 

Other quotes from the Tribune: 

"We are textualists. We are originalists. We are not nuts," he said. 

Can I get that on a tee shirt?  And on Roe v. Wade: 

What's more, the court's subsequent decisions on abortion are based on the judge-made theory of "substantive due process," which guarantees certain fundamental rights like privacy. It's "utterly idiotic," Scalia said. 

The entire article is worth reading.  [MG]

Is Originalism Hitting Its Sell-By Date? "October 1 may be the first day of the post-Scalia era."

Baltimore Law prof Garrett Epps thinks Justice Scalia may becoming a solid vote on SCOTUS -- "sort of a Clearence Thomas who talks." Solid votes do not influence other justices, something Scalia once did.

At 76, Scalia may have legacy on his mind. That might explain the massive new book he has just published with Bryan Garner, Reading Law: The Interpretation of Legal Texts, which proposes nothing less than a Unified Field Theory of legal interpretation. It might explain the overblown publicity offensive of the summer (Piers Morgan, for heaven's sake? Was Rachael Ray not available?), reprising greatest hits like the ever-popular "Get over it!" It might explain his eagerness to tell the world that he holds no grudge against Roberts for saving the PPACA.

For much more, see Epps' Does Antonin Scalia Still Matter?

Watch for Scalia (and Garner's) Reading Law: The Interpretation of Legal Texts becoming a regular "Deal of the Day" feature on WestMart. After the buzz dies down for this "groundbreaking book" yadda yadda, I'm thinking the marketing pitch will be...

Reading Law is a collectible because it is the last traditional legal treatise published by Thomson Reuters.

[JH]

A Few More Developments In The e-Book Market

It turns out that the settlement in the Apple e-book case has caused a reversion to the wholesale model and that Apple is competing with Amazon on price according to these articles (here and here) in paidContent.  I suppose there is a difference between what Apple would like to do and what Apple can do.   I suppose I could say to the Justice Department that consumers pay a little less, the retailer does not make as much money, but that’s what you want anyway.  HarperCollins has reacted to the reversion by raising the list price on some new items by $3 to $5 according to one of the stories.  Competition will sort out whether those pricing decisions are correct.

Speaking of which, check out this story by Gary Price on InfoDocket on how Hachette is raising prices for e-books purchased by libraries at an average of 220%.  The new pricing kicks in on October 1.  The increase affects 3,500 titles with release dates before April 2010.  Gary has another piece reflecting the (negative) views of the American Library Association on the move.

And finally, the settlement in the companion case brought by the states, the one where consumers will actually collect money (between $0.25 and $1.32) was preliminarily approved on Friday.  A fairness hearing will take place on February 8^th.  Judge Cote, as it turns out, is an e-book customer, though no story I’ve read tells me where she buys her content.  She has exempted herself from receiving any refunds that may be forthcoming under the settlement terms.  [MG]

Courtroom Antics Illustrated by Way of Benchslapping Opinions

There's an app a book about that (and Jason Wilson will be happy that it is not an app).

Quoting from the blurb for Matthew Bowers' Benchslapped: Publicly Humiliating Judicial Opinions (CreateSpace, 2012):

Benchslapped is more than compilation of legal snippets. It contains substantial passages drawn from some of the most interesting and amusing benchslaps ever published, along with back-stories, commentary and analysis. These opinions address a broad range of malfeasance, including frivolous litigation, professional misconduct, discovery abuse, rules violations, poor work product and insulting the bench.

Also from the blurb: "It is an excellent legal primer for new and aspiring attorneys and is a fun and thoughtful read for established lawyers." OK, well it does sound like an entertaining read for lawyers and may provide some instructional fodder for legal writing profs. And also for professional responsibility profs until Jones-McClure covers legal ethics and professional responsibility in its legal ed comic book series. See for example Nathaniel Burney's The Illustrated Guide to Criminal Law (2012).

Endnote. Jason, buddy, need a collaborator when it comes time to produce "The Illustrated Guide to Legal Research F-bombed"? [JH]

ScaliaLeaks!

In the latest Scalia-Posner dustup, this one being over Posner's review of Reading Law, Santa Clara Law prof Kyle Graham has ScaliaLeak-ed ... well, check it out for yourself on Concurring Opinions. I'm thinking TR Legal's marketing gurus are going Lady Gaga over all this publicity. See also On Scalia's (and Garner's) Reading Law: The Interpretation of Legal Texts.

Hat tip to Elie Mystal's Sept. 7, 2012 edition of ATL's Non-Sequiturs.

For more on Posner v. Scalia (Law & Economics v. Textual Originalism???), see David Lat's ATL post, The Benchslap Dispatches: Posner v. Scalia — Is It Personal? Hello Bloomberg, what's the chance of getting both former U of Chicago Law profs to agree to a video interview together? [JH]

Eviscerating Textual Originalism by Way of a Book Review: Posner on Scalia and Garner's Reading Law: The Interpretation of Legal Texts

Read more about it: Judge Posner's The Incoherence of Antonin Scalia. [JH] 

New Filings In The Apple e-Book Case

Judge Cote issued an order yesterday accepting the amicus briefs of the Author’s Guild and attorney Bob Kohn.  I wrote about the Authors Guild brief here.  Kohn’s brief was filed earlier but the Court has ordered it rewritten and reduced to five pages.  He argues in the original filing that the e-book market is interrelated between devices and content and as the content is digital, there is no supply and demand issue.  He calls for release of documents that exist in any investigation the Justice Department has made in Amazon’s pricing of e-books and calls that company’s practices as predatory. 

Kohn calls for a hearing on the matter which the Justice Department opposes.  The best strategy anyone opposing the settlement has is making the case about Amazon.  All the opposition to the settlement seems vigorous on this point.  I’m not surprised that Amazon hasn’t filed anything.  That would just open up more grist for the opponents.

Commentary on this is available at paidContent, with links to the various orders and filings here and here.  [MG]

A Blue Book Bites The Dust

There are all kinds of “blue books” out there.  There are the Uniform System of Citations, the various reports from the Joint Committee on Taxation, and the venerable booklets in which law students write their exams.  And, if it matters, there’s the one for car valuation.  These are all safe, so far. 

I understand that Thomson Reuters is discontinuing the National Reporter Blue Book because of “insufficient market interest.”  I mentioned this to another librarian who remarked “What does it do again?”  I think that may have been the overriding result of any market research TR may have conducted on the decision to cancel the title.  For the record, it converts citations from official state reports to citations in the National Reporter System.  I don’t believe I’ve used the set in at least 25 years or more.  Parallel cites are easily available in every online legal research system and through just about every search engine out there.  The need for the National Reporter Blue Book as a print publication is nil.  I’m surprised it lasted this long.  [MG]

E-Textbook Study Shows Promising But Mixed Results For Mass Use

The Chronicle of Higher Education reports on a study conducted by Internet2 that had tested the use of e-textbooks by students at major universities.  The faculty and students used textbooks provided by McGraw-Hill and Courseload to deliver the content to students.  Students were charged a materials fee rather than requiring them to purchase a book.  The major findings of the study included:

• Only a minority of users elected to purchase a paper copy (12%).
• The lower cost of an eTextbook was considered the most important factor for students considering future purchase of an eText.
• The portability of eTexts also ranked very high as a factor leading to future purchase.
• Other important factors in future eText purchases included that it should be accessible without an internet connection and available throughout a student’s academic career, not just for a semester.
• Difficult readability of the text (e.g., difficult zoom feature) was mentioned numerous times by students as well as lack of native functionality on tablets such as the iPad.
• Faculty, for the most part, did not report using the enhanced eText features (sharing notes, tracking students, question/answer, additional links, etc.) and indicated the need for additional training.
• Because faculty did not use the enhanced features students saw little benefit from the eText platform’s capability of promoting collaboration with other students or with the professor.

The report seems to indicate that the implementation of e-textbooks still has a way to go before students are completely comfortable with them.  As much as the students were enthusiastic about saving money and taking advantage of the perceived convenience of e-textbooks, everyone has to buy into the concept to make the delivery system work.  We’ve all heard how online textbooks can utilize interactive and collaborative features for a class.  It seems as if most faculty members in the study did not use these features which left the student users wanting.  This may have been a training issue.  One other major point is that despite being available on multiple platforms and devices, the smallest of these, smart phones, were less than optimal devices for content delivery.  Of course, we wouldn’t know any of this without actually testing the impact of content, utility, and delivery systems on real students in real courses.    

The full study is available here, and worth a read by anyone contemplating using e-textbooks in a production environment.  [MG]

Google Book Scanning Case Update

The Court in the Google book scanning case formally accepted a joint amicus brief filed earlier in the month by the American Library Association and the Electronic Frontier Foundation.  I wrote about the content of that brief on August 2.  Since that time the Authors Guild argued against the Court accepting those briefs.  The Guild’s points were that the briefs were really friends of Google than of the Court, citing precedent that rejected such filings.  The response was that there is no mechanical application of a rule that limits amicus briefs at the District Court level, noting the discretion of the Court in accepting such briefs.  The Guild, in any event, has filed similar briefs in cases where it had self-interest.

Various legal and humanities scholars submitted their own amicus brief shortly after the same time the ALA and EFF filed their brief.  This was formally accepted by the Court in the same order.  That brief argues that “text mining is a non-expressive use that presents no legally cognizable conflict with the statutory rights or interests of the copyright holders.” 

The technology implemented by Google, and potentially others, allows for unprecedented analytical opportunities through digitized content.  The use here is non-expressive and the copying (even at the level of 20 million or so books) is merely incidental to generate the metadata used by scholars.  This use is socially beneficial and that is one of the considerations in a fair use analysis.  The brief contains a series of examples of how scholars use Google’s technology to advance their understanding of their fields. 

The Court has laid out a briefing schedule as follows:  The amici will not be allowed to file responses to subsequent filings;  parties will file their opposition to the cross-motions for summary judgment on October 24;  the Guild can file its response to the amicus briefs by November 19; final briefs in support of the cross-motions for summary judgment are due on the same day; and oral argument on the cross-motions for summary judgment will take place on December 4. Relevant documents appear below.

Download Authors Guild Motion Opposing Amicus Filing

Download Reply To Opposition of Amicus Filings 

Download Amicus Brief by Humanities and Legal Scholars

Download Order Accepting Amicus Briefs

Download Order With Briefing Schedule

[MG]

(Well) I'm back in Blacks.

Aprroximately two weeks ago, I was instructing our incoming law students on how to read a judicial opinion. I implored them to keep a law dictionary within reach when reading case law, and to actually use it when they come upon a term of which they did not understand the meaning. I next went onto show them how to access some legal dictionaries online. Foolishly, I logged into WestlawNext (WLN), typed "Blacks" in the search box, and chose to enter the Blacks Law Dictionary database. At that moment, my foolishness was revealed to me. DENIED. I did not have access to Blacks Law Dictionary on WLN.

I tend to use either my personal hardcover version of Blacks that I keep in my office or my free Iphone law dicitonary app (sorry, Brian Garner, but I am not paying $54.99 for Blacks on my Iphone when I have sufficient free alternatives), so I don't usually try to access an online law dictionary through commercial sources, but I believe it to be improtant to provide ready access to ready reference material as useful and important as a law dictionary. If Ballentine's Law Dictionary has migrated to Lexis Advance, I cannot find it, and trying to locate it on LexisNexis is commonly a hassle for me (maybe I'm missing something).

I can recall a number of occassions that I tried to use Blacks Law Dictionary on WLN and was denied. So, yeah, the egg was on my face that afternoon. Luckily, I was able to somewhat save face by introducing th students to LII's Wex. Thanks, Cornell.

The good news is that I learned that Blacks Law Dictionary would soon be accessible via WLN. And when I checked it today, it was there. My first search in it: res judicata. (I've always just liked the way it sounds.) It is now on my favorites list and so next time the matter arises, I won't have to dodge the imaginary rotten tomato coming my way. So thanks for finally getting that worked out, West. Although I tend to quote my favorite philisophy professor, Arnold Rothstein, when he would say, "Better never than late," I will leave you with the more familair, "Better late than never." I'm just pleased that Blacks in back. (DCW)

Second Circuit Allows Appeal of Class Certification in Google Book Scanning Case

The Second Circuit has added another element of complexity to the Google book scanning case.  Google had objected to the class certification of the plaintiffs in the case, arguing that the Author’s Guild was not representative of the class.  Judge Chin granted certification earlier in the year despite that argument.  The Appeals Court granted Google’s motion for leave to appeal that decision yesterday.  Bloomberg BNA has a write-up on the action with a link to the order. 

The more interesting point of the analysis raised by BNA and the San Jose Mercury News is whether Google has a good case against certifcation.  Both sources state that while the class of authors may have commonality between them, it’s possible their grievances with Google may not be so common enough as to sustain a class action.  Law changed when the Supreme Court issued its opinion in Wal-Mart Stores, Inc. v Dukes. 

The Supreme Court overturned class action status to women who alleged discrimination in Wal-Mart’s employment and promotion decisions, ruling that the degree of discrimination was too variable to apply a remedy across the board to each class member.  The only alternative was anyone who was aggrieved had to sue individually, and if successful, receive a remedy that was unique to that situation.  The Court was not sympathetic to the argument that the ruling would lead to an explosion of litigation, or the alternative that viable plaintiffs may not sue at all.  I have an image of Justice Scalia singing Que Sera, Sera as the response to that one.

It’s possible for Google to raise similar issues with the class members represented by the Guild.  Are all authors affected in the same way by the scanning project to the point where a common remedy (in this case $750 per book) is applicable to the class?  The Guild is using this case to get a ruling that supports its view that any copying for almost any purpose is a violation of the copyright law and to limit any fair use arguments to the contrary.  Are all authors in the class similarly impacted by Google?  In certifying the class, Judge Chin said that the fair use analysis issue does not require individual representation in order to be resolved. True, but what about the remedy?  The briefs on appeal should be very interesting in addressing this issue.  One additional point is that the Second Circuit did not stay the lower court proceeding pending the appeal.  [MG]  

D'oh, OED Gets Hip By Adding New Words

The venerable Oxford English Dictionary has added several words reflecting both popular culture and the speed at which the Internet creates new expressions.  New additions include D’oh, Bling, Bromance, Frankenfood, Infomania, Muffin Top, Twitterati, and my favorite, Illiterati.  Nina Platt over at Pinhawk.com should be thrilled that Whovian (Defined as: A fan of the British science-fiction television series Doctor Who. "That Whovian is totally geeking out right now.") has also reached recognized status.  Count me in on that one.  I bought pretty every episode that is available on DVD and watch them regularly.  Getting back to D’oh, I would have thought that Homer Simpson’s plaintive expression would have made it years ago.

There is a nice slideshow with all of the words at the San Francisco Chronicle web site. [MG]

The Authors Guild Files Its Memorandum in the Google Book Scanning Case

The Authors Guild filed a motion for partial summary judgment in the Google book scanning case.  The motion calls for the following:

1. Google’s unauthorized reproduction, distribution, and display of in-copyright books violates 17 U.S.C. §§ 106(1), (3), and (5);
2. Google’s unauthorized reproduction, distribution, and display of in-copyright books are not “fair uses” pursuant to 17 U.S.C. §107; and
3. Under 17 U.S.C. §504(c)(1), representative plaintiffs and members of the certified class are entitled to an assessment of statutory damages of $750 per Book for Google’s copying, distribution, and/or display of Books in violation of 17 U.S.C. §§ 106(1), (3), and (5).

17 U.S.C § 106 reads as follows:

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

I guess the Guild has accounted for the part of the statute that reads “Subject to sections 107 through 122” with the second point of the filing.  Google’s reasoning in its brief calling for a finding of fair use is pretty reasonable in light of precedent.  The Guild’s memorandum of law supporting the motion counters by saying Google’s scanning is not transformative at all because it is verbatim copying in whole and snippets are not transformative.  The Guild cites Supreme Court and Second Circuit precedent to that effect.  The Guild argues further that Google’s purpose is commercial in that it seeks an advantage over other search engines which do not have similar indexing and display of books.

Google argued that the scanned books did not act as a market substitute for the books at issue.  The Guild counters that the market was indeed harmed because it distributes books to libraries in return for scanning their collection.  The harm in this situation is that the libraries did not seek a digital license from the publishers to scan nor bought digital copies.  Under Supreme Court precedent, the harm should be measured to potential markets, such as a licensing market.  The Guild, being the nice guys that they are, seeks the statutory minimum of $750 per infringement.  Judge Chin will have his work cut out for him.  Reply briefs are due near the end of August.

Download the Memorandum of Law in Support of Authors Guild.  [MG]

EFF And Library Associations File Amicus Brief in Google Book Scanning Case

The Electronic Frontier Foundation (EFF) along with the American Library Association (ALA), the Association of College and Research Libraries (ACRL), and the Association of Research Libraries (ARL) filed a joint amicus brief yesterday supporting Google’s motion for summary judgment in the book scanning case.  Google filed its motion a week ago.  The brief, by its terms, does not duplicate Google’s arguments, though it amplifies some of them by describing the utility of Google Book Search to libraries and the general public. 

The application to fair use comes in the form of scanning to create an index that displays nothing but snippets.  This is described as a transformative use of the work consistent with existing legal precedent.  The parties cite the Perfect 10, Inc. v. Amazon.com, Inc. case (508 F.3d 1146 (9^th Cir. 2007) in particular where Google was found not to be liable for creating thumbnails of copyrighted images which it used in its search results.  The court there called the activity transformative with social benefit.  The analogy is the need to digitize the book to create the word index used to serve up snippets in the results is also transformative under fair use analysis. 

The library associations use particular examples where scholars, librarians, and others have used Google Book Search to locate obscure texts that patrons have either bought or acquired through interlibrary loan.  Other search mechanisms would not have offered the same results.  Another social benefit described in the brief is the ability to check citations and bibliographic information accurately and faster than traditional means.  These capabilities are especially useful in an era of tighter library budgets.  If the Author’s Guild thinks there is an indexing market out there, the brief emphatically states that libraries would not likely participate in it due to anticipated costs. 

The brief argues further that the Guild entered into settlement talks and could have asked the Court to on numerous occasions to stop Google from scanning.  This brings up an interesting point.  The rejected settlement was an agreement between the Guild, publishers, and Google to not only allow scanning of books, but to create a store to sell them as well.  Creating a store is not the point of this litigation unless the parties come up with another settlement they propose.  This case is about the ability of Google to scan and serve up snippets.  The fair use analysis proposed by Google and amici is far from a stretch in that limited context. 

The brief is available here, courtesy of the EFF.  The press release is here.  [MG]

Scalia on the Road: “I express myself vividly.”

HOST CHRIS WALLACE: What about… a weapon that can fire a hundred shots in a minute? SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried — it’s to keep and “bear,” so it doesn’t apply to cannons — but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided. WALLACE: How do you decide that if you’re a textualist? SCALIA: Very carefully.

With the SCOTUS term over, the once camera shy Justice Scalia is making the media rounds. See Me? Cantankerous? Scalia Says It Isn’t True, Needles Posner in Defense of Immigration Dissent by Debra Cassens Weiss on ABAJ News. See also, just for an example, the NBC coverage of the same Fox News interview, Justice Scalia steps up criticism of healthcare ruling ("I haven't decided when to retire," Scalia told the "Fox News Sunday" program. "... My wife doesn't want me hanging around the house - I know that.").

Do note that the Fox interview starts off with Scalia pitching explaining his new book, Reading Law: The Interpretation of Legal Texts. Apparently this isn't a topic that is too dull to be televised to the American public. No word on whether Justice Scalia plans to make an appearance on the Colbert Report to promote his new book.

The video of the interview can be found in the Fox News article, Scalia opens door for gun-control legislation, extends slow burning debate. Immigration, healthcare, gun control and originialism all in one interview! [JH]

Book Review: Victory: The Triumphant Gay Revolution

Linda Hirshman’s book, Victory:  The Triumphant Gay Revolution is a well written history of the movement that brought about changes in the legal and social establishments which treated homosexuals as third class citizens.  She calls this the struggle for homosexuals to participate in the social contract with the liberal state for the same benefits as other citizens.  Social movements in the 1960s and 1970s focused on civil rights for minorities and women.  Gays were different.  Their movement had to overcome the religious and moral opposition to homosexuality that imbued laws which treated gays as criminals and outcasts.  Police routinely abused them.  Government would not let them work for it or serve in the armed forces.  Benefits routinely granted to heterosexuals were denied.  Marriage was out of the question.  Being outed as a homosexual amounted to societal humiliation that sometimes had lethal consequences.

The story of the gay revolution started when gays started to think, hey, we look like everyone else, why can’t we be treated like everyone else?  Gay men were being separated from the army right after World War II, after serving on the battlefield, and denied the same benefits granted to their heterosexual counterparts.  The Civil Service Commission thought gays were unfit for government jobs.  Conservatives such as Senator Joe McCarthy used gays in government as boogie men for his attacks.  When he was challenged with “have you no decency,” little or none of any societal decency extended to McCarthy’s targets would include the gay individuals that the Senator attacked.

Movements started, slowly, tentatively at first in order to organize gays socially, and then politically.  People who joined the Mattachine Society in the 1950s did not necessarily want family, (some) friends, and the greater society to know about their membership.  This group evolved into other groups, some more radical than others that began to attack the social and political structures which suppressed participation by gays in that liberal state.  Some of these took the form of legal challenges.  Others pushed the edges of social recognition.  The legal challenges predictably failed.  But the fact that someone tried led to other challenges depending on circumstances. 

One of the strengths of the book is how it weaves the various groups that formed into a timeline describing their issues, their attitudes, their strategies, and particularly the individuals who drove them.  The black civil rights movement had its Doctor King.  I’m sure a majority of people could not identify the leaders of the gay rights movements.  And there were a lot of them, each pushing forward in their own way.  Harry Hay founded the Mattachine Society.  There was D.C. activist Frank Kameny who litigated on behalf of those dismissed by the Civil Service.  Richard Socarides was an advisor to President Clinton.  These are three.  There are hundreds who fought the battles on behalf of gay rights.  They are all in this book.

The story also includes the events that shaped the movement.  The New York City Stonewall riot was pivotal in that it caught the attention of the public.  Gay bar goers would no longer accept police harassment and had the temerity to fight back.  That, of course, did not win the war.  It did, however, encourage others to take up the cause to push back in other areas.  There were marches, civil disobedience actions, and other events that brought gays into the public conscience as equal members of society.  Gays organized politically in urban areas such as New York and San Francisco.  They became a force in the electorate that candidates could not ignore.

That’s not to say that everything went smoothly.  The religious right organized itself to assert its opposition.  We see this today in the way the California marriage case is playing itself out.  This is but one example in the book.  There are others in how the politics of gay rights led to the repeal of “Don’t Ask Don’t Tell” and the foot dragging by the Defense Department to implement the repeal.  It took a court case to end that. 

When AIDS came along, the gay rights organization had to fight government indifference to the disease.  Funding for a medical understanding, let alone a cure, was not the priority of the Reagan administration.  It was more than a matter of lobbying.  The campaign for recognition included “We die, they do nothing,” which made an impression both social and political.  Perhaps that decency which eluded McCarthy’s gay targets was finally forthcoming, but again, not without a fight.

The book documents all of this and more.  There is the distance between those advocating for civil rights for gays and the other civil rights movements.  What the movement achieved was done with little support from others seeking equality.  There is the horrific death of Matthew Shepard which led to laws which stated flat out that gays aren’t targets for sport.  Again, here is decency expressed in a political outcome. 

Anyone interested in the social, political, and moral struggles of how a truly oppressed group fought the law, and in this case mostly beat it should read Victory.  The book is published by Harper and is 443 pages with index.  Harper provided a copy of the book for this review.  [MG]  

U.S. News Looks At Academic Publishing Costs

U.S. News editor Simon Owens has an article about the current state of academic publishing and the high cost of subscribing to available content, particularly in the scientific fields.  The crisis is exemplified by the Harvard Libraries telling faculty that the cost of subscribing to their research journals is “unsustainable.”  Prices rise for the captive academic customers and a few publishers make a tidy profit despite the economics of publishing these journals. 

We in academic law libraries may see the side effects of this crisis indirectly.  If our libraries contribute to the cost of some of these subscriptions, then our costs rise as well.  I think it’s true for most law faculties to spend more time researching and writing about social science issues rather than pure law.  I find myself using Academic Search Premier, Wiley, Elsevier, JSTOR, and other databases way more than I use Lexis or Westlaw.  The latter have become document delivery sources rather than to research a legal issue.  Such is the state of faculty research. 

Then there is the question of what to do about the cost of law reviews.  Hein Online is such a stable and affordable source for current and archival law reviews that it seems less and less compelling to keep bound volumes on the shelf.  Of course, this view only works provided some predatory publisher or conglomerate doesn’t purchase Hein and upsets that stability.  I guess that is always a possibility even if unlikely.  But I digress. 

Harvard’s message to its scholars is to ask that they consider publishing in open source publications.  The problem with that is careers are made on prestigious citations.  Open source journals haven’t necessarily reached that status in the academic world.  That’s not to say that there isn’t support for the idea.  The Public Library of Science (PLoS) publishes more and more content as time progresses. 

Two other issues affect the reasonable availability of open access articles.  One is the peer review process many commercial publications use which is to leverage the expertise of the scientific community for the editorial work.  Note that these reviewers do not get paid for their activity.  At the same time, they do get access to the journals for their own publications. 

The second reflects the attempts by the publishers to keep government funded research from any type of free access.  The latest withdrawn example, the Research Works Act, would have stopped government agencies and the National Institutes of Health in particular from creating repositories of research articles based on public funding.  Some publishers and scholars opposed to these repositories suggest the taxpaying public wouldn’t understand the highly technical content of these articles.  My response to the argument is that scholars pay taxes.  In any event, why shouldn’t scholars build on publicly funded research without having to pay (or pay a lot) for the privilege? 

One alternative suggested by Fred Dylla, executive director at the American Institute of Physics, is for agencies to list papers generated from their grants and then link the public to sources where papers could be downloaded for a small fee.  He said there are around 40 publishers using a rental model for one-off downloads with the price similar to that of a cup of coffee.  I’m not so sure about that.  So far the rental accesses I’ve seen seem more around the price of a coffee urn than a cup.  Then again, that 30-40% profit margin must be maintained. 

Owens does a nice job of examining the economics of the academic publishing industry.  It’s well worth a read.  And the best part is that U.S. News hasn’t placed it behind a pay wall.  [MG]