Law Librarian Blog

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]

Two More Codes Now Available from PublicResource.Org

Following the March 25, 2013 upload for bulk distribution of the DC Code, (LLB post here) PublicResource.Org uploaded the Colorado Code on April 16th and the Baltimore, Maryland Code on April 19th. About the Baltimore Code, see Carl Malamud's Twitter exchanges.

Hat tip to Legal Informatics Blog. [JH]

DPLA Launches with 2.4 Million Records

The Digital Public Library of America (DPLA) launched a beta of its discovery portal and open platform on April 18, 2013. From the announcement:

The portal delivers millions of materials found in American archives, libraries, museums, and cultural heritage institutions to students, teachers, scholars, and the public. Far more than a search engine, the portal provides innovative ways to search and scan through its united collection of distributed resources. Special features include a dynamic map, a timeline that allow users to visually browse by year or decade, and an app library that provides access to applications and tools created by external developers using DPLA’s open data.

...

The DPLA portal is powered by a rich repository of information, known as the DPLA platform, which enables new and transformative uses of America’s digitized cultural heritage. With an application programming interface (API) and maximally open data, the DPLA can be used by software developers, researchers, and others to create novel environments for learning, tools for discovery, and engaging apps. The DPLA App Library features an initial slate of applications built on top of the platform; developers and hobbyists of all skill levels are freely able to make use of the data provided via the platform.

[JH]

AALL Launches Website for Monitoring Status of State Online Legal Resources

Thanks to AALL's Digital Access to Legal Information Committee and all the prior efforts by AALL members the State Online Legal Information website "brings together information from AALL's National Inventory of Legal Materials and updates AALL's Preliminary Analysis of AALL’s State Legal Inventories, 2007 State-by-State Report on Authentication of Online Legal Resources  and 2009-2010 State Summary Updates." Information is provided about the electronic delivery of primary legal resources in all 50 states and the District of Columbia in the following categories:

• Official Status
• Authentication
• Preservation
• Permanent Public Access
• Copyright
• Universal Citation

Check the status for your state's eResources. The Committee welcomes your contributions. See also DALIC's Definitions of Inventory Categories.

Hat tip to AALL's Washington Blawg for this announcement. [JH]

Scott Turow Responds To The Kurtsaeng Case And More

Scott Turow, author and president of the Authors Guild, wrote an op ed piece on the Kurtsaeng case in the New York Times last Sunday.  Naturally, he’s appalled at the outcome, though that is really a minor part of his complaints.  The bulk of the piece rails against Google, technology, piracy, and even libraries.  I recommend the piece by Mike Masnick in Techdirt that takes Turow’s arguments apart paragraph by paragraph.  I’ll only add a few thoughts here. 

Turow says about libraries: 

Even libraries and authors, usually allies, have grown less cozy. No one calls our public library system socialistic, though it involves free distribution of the goods authors produce, and even though in many Western nations, authors get a tiny fee when libraries lend their works. Authors happily accept our system, because libraries have nurtured them as writers and readers. 

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries. 

Scott, did you consider for a moment that even when a publisher does “sell” e-books to libraries that it does so at exceptionally high prices and terms, along with harsh digital rights management that hamstring the distribution and end use of the copy?  Why, I’d almost think you despair at the fact that library lending can’t be further restricted and monetized somehow. 

And then there are the pirates, aided and abetted by the major search engines: 

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages. 

1998 you say?  And 15 years later Congress still hasn’t corrected this situation?  I’d almost get the impression that the pirates have a better lobbying effort than the Guild. 

Google, which seems to have the better track record on pirate links get its hits.  First there is the Google book scanning project in which the Guild soldiers on as a litigant, even when the publisher plaintiffs and others have settled.  Then there is the HathiTrust, an outgrowth of the scanning project, which was forced to suspend its orphan works program because it had trouble identifying authors and titles.  None of that, however, changes the underlying and more important fact that the District Court in the HathiTrust case found the wholesale scanning of library collections to produce an electronic index is fair use.  The Courts are just not cooperating. 

There are multiple points of view on how Internet availability of books, legal and otherwise, affects how authors exploit their works.  Author Neil Gaiman said this: 

You're not losing sales by getting stuff out there. When I do a big talk now on these kinds of subjects and people ask "What about the sales you are losing by having stuff floating out there?" I started asking the audience to raise their hands for one question -- Do you have a favorite author? And they say yes and I say good. What I want is for everybody who discovered their favorite author by being lent a book put up your hand. Then anybody who discovered their favorite author by walking into a book story and buying a book. And it's probably about 5-10%, if that, of the people who discovered their favorite author who is the person they buy everything of and they buy the hardbacks. And they treasure the fact they've got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it. That's how they found their favorite author. And that's really all this is; it's people lending books. 

I don’t think that Gaiman is encouraging piracy.  He seems to have accepted it as a component of book discovery which conceivably may increase sales.  Turow says his concern is with the mid-list authors who may lose sales more than an established author.  I can appreciate that concern, though I believe that obscure authors would still be obscure if the Internet had not been created. In fact, I think they would be more obscure.

My opinion is to either change the law or change the business practices.  The latter may be easier as it doesn’t require an act of Congress.  Railing against the various court rulings doesn’t change anything.  Oh, and lay off the libraries if you don’t mind.  We follow the copyright laws even if some Internet sites do not.  [MG]

Obla di, obla da, life goes on: "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" because one of AALL's "vendor partners" is at it again

We strive to obtain the maximum value for our institution's fiscal resources, while at the same time making judicious, analytical and rational use of our institution's information resources. -- AALL Ethical Principles (1999)

ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION Dear LexisNexis® Subscriber: The next release of this publication will be delivered in eBook format via the LexisNexis® Download Center. You will no longer receive the printed version of this publication. Electronic delivery via the LexisNexis Download Center will increase the timeliness and currency of your newsletter subscription, in addition to reducing our impact on the environment. What do you need to do to ensure your subscription continues? Visit www.lexisnexis.com/eShift and complete the eBook processing form. This information will be used to transfer your subscription to eBook and enable access to the LexisNexis Download Center. You will then receive an initial email with your username, temporary password and a link to the LexisNexis Download Center. When you arrive at the Download Center for the first time, you will be asked to create a security question. After completing the security question, you will be logged into the Download Center and able to download material. What should you expect going forward? After providing an email address for your account, you will receive an email alert from LexisNexis when a new release of the publication becomes available. This email alert will include a link to the LexisNexis Download Center, where you may access the latest edition. To access the PDF, you will need to download Adobe Reader to your computer if you do not already have this program. Only the latest newsletter issue will be available on the LexisNexis Download Center. You will need to save and archive each edition for quick reference to previous issues. If you miss downloading an earlier release, you may contact Customer Support and ask that a copy be sent to you. Thank you for choosing LexisNexis products and services. If you have any questions about your subscription, please call us at 800.833.9844, email customer.support@lexisnexis.com or visit www.lexisnexis.com/printcdsc. Note Regarding Reuse Rights: The subscriber to this publication in .pdf form may create a single printout from the delivered .pdf. For additional permissions, please see www.lexisnexis.com/terms/copyright-permission-info.aspx. If you would like to purchase additional copies within your subscription, please contact Customer Support.

Without advance notice to invoice-paying law librarians, attentive serials check-in staff are spotting a form letter (sidebar right) inserted in the shipment of the last print copies of newsletter, bulletin and journal issues stating that their periodicals will no longer be published in print by Lexis.

Under the banner heading "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION", the "Dear LexisNexis® Subscriber" Notice states in its lead paragraph:

The next release of this publication will be delivered in eBook format via the LexisNexis® Download Center. You will no longer receive the printed version of this publication.

(Emphasis in the original.)

Further on, the Notice states:

Only the latest newsletter issue will be available on the LexisNexis Download Center. You will need to save and archive each edition for quick reference to previous issues. If you miss downloading an earlier release, you may contact Customer Support and ask that a copy be sent to you.

Note well, the Notice does not even identify the title of the publication. Also, it is not an eBook. Each forthcoming issue will be a PDF copy that the subscriber is permitted to print out once.

So the first action required... is to ask your serials check-in staff to write down the damn title on the Notice that has been eShift-ed by Lexis. To get started, here's the list of Lexis periodical titles Harvard Law School Library has be able to identify. It's only current as of the middle of last week:

• Environmental Law
• CA Family Law Monthly
• Commercial Damages Reporter
• CA Criminal Defense Reporter
• CA Environmental Law Reporter
• Business Crime
• Benders Health Care Law
• FL Family Law Reporter
• CA Real Estate Reporter
• TX Family Law Reporter
• TX Torts Update
• Warren Heaton Case Digest
• Benders CA Labor & Employment
• Construction Law Digest
• Benders Labor Employment Bulletin
• CA WCAB Noteworthy Panel Decisions
• Michies 4th Circuit Criminal Reporter
• MA Family Law Journal
• MN Family Law Journal
• TX Oil & Gas Law Journal

Do note that according to one librarian's exchange with a Lexis rep, sometime this summer Lexis will have online an archive of PDF-ed issues in case you have missed this eShift for an affected periodical. Until then, call your pBook-eBook rep before he or she is laid off in Albany. They are the best equipped to help with these pesky account management issues. In the alternative, just cancel the damn periodicals and demand a refund from your Lexis rep. Quoting from the Notice:

Thank you for choosing LexisNexis products and services.

Lexis claims "Electronic delivery via the LexisNexis Download Center will increase the timeliness and currency of your newsletter subscription, in addition to reducing our impact on the environment." Well, it will not increase timeliness and currency of the so-called "newsletter" (read "periodical") subscription until institutional buyers figure out how to archive and deliver to their user populations all forthcoming ePeriodical PDF issues. And that certainly will have an impact on libraries' tech services, IT, and user services environment unless what one only does is print out a single PDF copy and pretends the affected periodical is still published in print.

"Making judicious, analytical and rational use of our institution's information resources." How are libraries supposed to preserve and make accessible issues of titles affected? According to Lexis, download every damn PDF issue and host the ePeriodical's issues on your local server. How circa late-1990s web hosting is that! So get ready to have this conversation with your IT staff.

First we need a dummy email account. Something like "serial(dot)checkin@" will do. Then the library needs separate dark subdirectories on our web server for Environmental Law, CA Family Law Monthly, Commercial Damages Reporter, etc. After that, under each title's web page, we need "<ul><li></li><li></li>[and on and on until]</ul>."

You need to give our serials check-in staff permission to access the server so we can upload PDFs and insert identifier text with embedded links within each "<li></li>" segment. Or your department's staff needs to do this promptly so we can provide access each time an issue has been downloaded and emailed to your department.

For each subdirectory's web page the library also will need an RSS feed so we have a way to subscribe those members of our user population who want to know when an issue has been received and processed. Hopefully no one makes mistakes to the web page otherwise false update messages will be generated.

Yes, each ePeriodical title really must have its our subdirectory.The library needs a unique URL to include in our OPAC's bibliographic record by title to this dark archive when we update our bib records with an eShift note. Hey, I don't want to do this either but I'm not calling the technical processing shots, Lexis is. I'm just trying to deal with the consequences.

Yup, that's a "great" way for making "judicious, analytical and rational use of our institution's information resources." Of course, one also can ask the IT staff to start creating an in-house database or elending solution tied to a library's serials check-in and circulation modules but since no library yet knows how many and when their Lexis periodicals are being eShifted, it might be wise to just start with some basic HTML coded web pages for now.

ePeriodicals, no problem. Dumping this on institutional subscribers with no thought of how this migration is supposed to be efficiently executed by subscribers (in-house economics alert), just like the "free" eBook substitution for CDs, by Lexis, yes, problem.

"To obtain maximum value for our institution's fiscal resources." I understand that Harvard Law School Library has informed CRIV of this latest eFormat switcheroo executed by Lexis. It is unclear to me if the Executive Board knows what the hell is going on because the communication to CRIV was made right around the time E-Board members were traveling to and attending their Spring Meeting in Chicago. (Can you say "live and archived webcast of the proceedings if AALL really wants to be transparent in conducting our, not their, business?")

The meeting's agenda included approval of AALL's The Code of Best Practices for Licensing Electronic Resources. See Tab 14 of the Spring Meeting Board Book behind AALL's walled garden for the text. Assuming The Code was approved, apply it and AALL's Guide to Fair Business Practices (2012) to this latest eFormat substitution by Lexis.

Frankly I believe that exercise would just be a waste of time. By allowing vendors to be AALL members (full, associate, whatever), one of our association's so-called "Business Relationships" ethical principles, quoted above, is vacuous. Worse than that -- this ethical imperative only protects vendor members because their business plans trump library business plans according to the Fair Business Practices Guide.

It certainly is time to queue up this music video. [JH]

The District of Columbia Claims It Needs to Copyright Its Code to Protect Itself from Commercial Publishers

Here's an odd twist to the copyright argument from a government actor. Quoting from Luke Rosiak's Ignorance of D.C.’s copyrighted laws can be costly (Washington Times, March 31, 2013):

Vladlen David Zvenyach, who oversees codification for the city council, said in Washington’s case, Mr. Malamud has nothing to worry about.

“At one point, the publishers threatened states over the ownership of their own code. If Lexis is the one doing it and the state goes around and alters it, they could be sued by the publishers. Our copyright is intended to protect us against them, not protect them against the public,” he said. “I have no intention of going after him.”

What was going on here? Carl Malamud acquired, scanned, OCRed and uploaded for bulk redistribution the 20-plus print volume edition of the District of Columbia code published by Thomson Reuters under contract with the Code's copyright owner, the District of Columbia. While Malamud was not looking to be sued, Steve Schultze took this a step further: "I downloaded his [Malamud's] copies, printed one of the volumes, and took a picture inviting Thomson Reuters or the DC Council to sue me... ."

One would think the District of Columbia will not sue Schultze since it does not intend to sue Malamud. As for Thomson Reuters, well, two thoughts. First, Schultze's post, The District of Columbia Claims Copyright on the Law, (includes photo) was published on Freedom to Tinker, a blog hosted by Princeton's Center for Information Technology Policy. While Schultze may have printed out a portion of the code on his own initiative, I'm thinking the Center might be looking for or willing to take on a test case.

Second, I doubt Thomson Reuters gives a damn anymore. As this WestMart e-blurb states (last visited on April 3, 2013) the DC Official Code is published by Thomson Reuters under an exclusive contract with the District of Columbia and Thomson Reuters claims it is copyrighted. However, the title is currently out of stock. And it may remain out of stock because the District of Columbia is switching to LexisNexis, presumably under another exclusive contract.

Do note that when Thomson Reuters was the District of Columbia's exclusive publisher it was required to provide a "free access" Westlaw portal for the DC Code (also last visited on April 3, 2013). See Tom MacWright's The Code: Access vs. Ownership for a critique. Is something better in the works? In the context of Lexis replacing Thomson Reuters, Luke Rosiak reports in the above cited Washington Times article that "the city is working to make the full text available in more flexible formats, rather than locked behind mouse-clicks on WestLaw’s website."

Hum... . How? Using Lexis coded eText? Hosted by Lexis? Perhaps someone will make an open records request for the Lexis-DC contract.

Note well that Georgia claims copyright ownership of the Official Code of Georgia Annotated. Lexis, as the state's official publisher, is required to provide a very similar "free access" portal with the following terms and conditions of use:

GEORGIA CODE – FREE PUBLIC ACCESS

The Official Code of Georgia Annotated (O.C.G.A.) is copyrighted by the State of Georgia. By using this website, the user acknowledges the State's copyright interests in the O.C.G.A. Neither the O.C.G.A. nor any portions thereof shall be reproduced in any form without written permission from the Georgia Code Revision Commission, except for: (1) fair use under the copyright laws of the United States; or (2) those limited portions that are in the public domain (statute text and numbering).

Use of this website and the downloading or copying of any material there from shall be subject to the Terms and Conditions of LexisNexis®, which is the official publisher of the O.C.G.A. and maintains this website at its own expense to provide free public access to the law. It is not intended to replace professional legal consultation or advanced legal research tools. Please note that the latest print version of the O.C.G.A. is the authoritative version; and in case of any conflict between the materials on this website and the latest print version of the O.C.G.A., the print version shall control. To report errors regarding this website, please complete the publisher's Feedback Form.

Wouldn't a simple Creative Commons License be the better way to go about this? See Lobbying for More Than Just UELMA. At some point, I'm thinking even our major legal publishers, legal solutions providers, professional legal services (whatever) vendors might find this to be an attractive alternative to today's status quo.

End note. Does the sue-not sue outcome of the DC Code copyright matter remind you of something that happened in the past when Malamud scanned and uploaded for distribution primary legal resources "protected" by a state actor claiming copyright? It should. See Ed Walter's Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes July 15, 2011 VoxPopuLII post for details. [JH]

Lobbying for More Than Just UELMA

We all know the intent behind UELMA. Authentication, preservation and permanent public accessibility to the most basic state-level digital primary legal resources, namely "state constitutions, session laws, codified laws, and administrative rules with the effect of law" by state actors designated as "official publishers” to carry out the provisions of the Act in those instances where state governments are delivering such legal materials in electronic formats. After that it is game on because UELMA does not affect any contractual relationship between an official state publisher and a commercial publisher, nor does it affect copyright claims.

Is UELMA flawed because of what it leaves unaffected? Of course not. The Uniform Laws Commission could not venture into contract and copyright laws. However, as folks lobby for UELMA adoption (current status available on the ULA site see also AALL's 2013 bill tracking report) they may want to take a look at what is happening in California.

California was the second state to adopt UELMA. SB 1075 was signed into law by California Governor Jerry Brown on September 13, 2012. If my always faulty memory isn't up to its usual tricks, I believe the Act takes effect in 2015. However state copyright claims and state publishing contracts with a commercial vendor remain an issue.

Lobbying for Creative Commons licensing in addition to UELMA. Recently California Assemblyman Brian Nestande (R-42nd Dist.) tossed AB 292 into the bill hopper. It calls for applying a Creative Commons License to the California Code of Regulations to allow any individual, at no cost, to use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes because the California Office of Administrative Law holds an exclusive copyright on the CCR. I doubt Assemblyman Nestande would mind if I republish his office's press release in full. So here it is:

The agency responsible for reviewing and approving new regulations, the Office of Administrative Law (OAL,) holds an exclusive copyright over regulations that are created with taxpayer dollars.  All taxpayers already fund the activities of government, including the creation of new regulations.  Restricting access to these regulations requires taxpayers to pay twice for the same government activity.  Because all taxpayers are bound by the law, businesses are compelled to pay for complete access to the regulations that bind them.  The cost of purchasing access to the regulations can vary from $30 to more than $3,000, depending on what sections of regulations are needed.

AB 292 will provide that the full text of the California Code of Regulations shall have an open access creative commons attribution license, allowing any individual, at no cost, to use, distribute and create derivative works based on the material for either commercial or noncommercial purposes.

While OAL is required to post a copy of the California Code of Regulations (CCR) on its Web site, it makes this version prohibitively difficult to navigate, and restricts access with the following restriction: “no part of this Web site may be reproduced, duplicated, copied, downloaded, stored, further transmitted, disseminated, transferred, or otherwise exploited without Thomson Reuters’ prior written consent.”  These restrictions require businesses to purchase complete access from Thomson Reuters, from which OAL derives a share of the profits.

When the Legislature enhances the profitably of an activity, it incentivizes that activity.  By allowing OAL to profit from access to taxpayer funded activities, the Legislature is inherently making a statement that California needs more regulations.  By giving a profit motive to approve regulations, it incentivizes the approval of more regulations.

Allowing OAL to profit from the sale of access to the regulations it has the authority to approve creates an inherent conflict of interest.  OAL currently uses its proprietary copyright to issue an exclusive license to Thomson Reuters in exchange for a $400,000 annual license fee and 7% of all royalties.  As more businesses are covered by new regulations, more businesses need to purchase access to those regulations from Thomson, and OAL derives a larger profit.  This makes it difficult to be truly objective when approving new regulations, if it directly benefits from expanding the state’s regulatory burden.

Due to the restrictions OAL sets forth on access to state regulations, search engines such as Google cannot legally access and index the CCR.  In addition, developers cannot create user-friendly applications for smartphones and tablets that would allow the public to easily access, manipulate, and share regulations. This in turn can limit innovation and transparency.

Additionally, because of these restrictions to the CCR no individual can legally reproduce the text of a regulation.  This prevents covered entities from freely sharing and discussing new regulations.  Even a petition to repeal a regulation would violate OAL’s copyright if it quotes from the text of that regulation. This hindering of political speech is counter to an open and transparent government.

Finally, access to statutes and regulations should be consistent across all of California government.  Unlike OAL’s copyright over administrative law, the Legislature holds no copyright over the laws it creates.  Legislative Counsel covers the cost of making laws and is available to every taxpayer because this is a proper and legitimate role of government.

By making the CCR free and readily available to the public, we are creating a more transparent government and easing the burden on businesses that must purchase access to the regulations that bind them.

In those instances where states claim copyright ownership of primary legal resources, UELMA lobbyists might want to look to AB 292 for model language to include or at least submit as companion legislation. Such language should also eliminate any commerical publisher's copyright claims to section heading texts in codifications of otherwise public domain primary legal resources if created by the publisher. This way any individual could at no cost easily use, distribute, and create derivative works based on the material for either commercial or noncommercial purposes.

End note: Granted potential separation of powers issues abound but I would push further for Creative Commons licensing of state publications. For example the Ohio Judicial Conference, an independent statutory entity within the judicial branch of government, claims copyright ownership for Ohio Jury Instructions. Lexis has the contract to publish OJI in print. List price is a whopping $544. Compare that to other state agency authored pattern jury instructions pricing.

Granted Lexis OJI includes some editorial enhancements -- "explanatory Committee Notes, references to Ohio Revised Code sections, cases and other materials for your own research," is updated at no small expense, and even includes a CD (not yet, if ever, to be replaced by a "free" eBook). But for a print version, Lexis OJI is the only game in the Buckeye State.

For online distribution of OJI, the Ohio Judicial Conference currently limits licensing to three vendors. At the moment they are Lexis, West and Casemaker. Why not more? To create a bidding war? Isn't it time to stop an "independent statutory entity within the judicial branch of government" from milking this cash cow?

I have no doubt that watchdogs in other states can find similiar examples at many, if not most, branches of state government. [JH]

Palfrey's Why We Miss the First Sale Doctrine in Digital Libraries

In Why We Miss the First Sale Doctrine in Digital Libraries, John Palfrey "examines the role of law in the ebook lending debate, explore potential solutions to the problems, and consider how the DPLA can contribute to solutions for those we serve. At the core of this issue is the way the copyright law works–or doesn’t–when it comes to books, libraries, and readers in the United States today and into the future."

Hat tip to beSpacific. [JH]

Open States: A non-profit, non-partisan public resource for monitoring state legislative activity

"If you're interested in your state lawmaker, you'll be able to get notifications for their actions, a map of their district, voting records, committee assignments, campaign finance records from Influence Explorer, local news articles and contact information. If you're curious about a particular piece of legislation, Open States allows you to check on its status, find the sponsors, break down votes, view bill text and all supporting documents. Our powerful search capabilities allow you to find similar topics across states and view overview pages for each state, chamber and committee." --- Nicko Margolies, Open States: Find and Follow Your State Capitol (Sunlight Foundation Blog, Feb. 14, 2013)

In February of 2009, the Sunlight Foundation announced that its next big goal was "The Fifty State Project." The objective was to provide the same sort of access to legislative data and related information OpenCongress did but for all 50 states from one website. Not an easy task but the Foundation stayed the course. Last month the Sunlight Foundation announced the launch of the full Open States site.

After more than four years of work from volunteers and a full-time team here at Sunlight we're immensely proud to launch the full Open States site with searchable legislative data for all 50 states, D.C. and Puerto Rico. Open States is the only comprehensive database of activities from all state capitols that makes it easy to find your state lawmaker, review their votes, search for legislation, track bills and much more.

Let's add that Open States data is available for bulk downloading.

Give Open States a test drive. Some may want to toss it into an ALR lecture on researching state legislation. Others may want to add the resource as an alternative to very expensive research offerings for monitoring state legislation. And some may even want to experiment with repurposing the data made available by bulk downloads. For an introductory tutorial, see Exploring State Legislative Data.

Just as OpenCongress has evolved since 2009, my hunch is Open States also will. [JH]

Opening PACER

Hat tip to Legal Research Plus for calling attention to OpenPACER.org's draft bill, The Open PACER Act of 2013.

The Open PACER Act provides for free and open access to electronic federal court records. The courts currently offer an expensive and difficult-to-use web site. They charge more than their cost of offering the service—more than Congress has authorized—violating the E-Government Act of 2002. This Act seeks to, once and for all, compel the courts to fulfill Congress' longstanding vision of making this information "freely available to the greatest extent possible".

[JH]

Mary Minow's ALA TechSource Workshop on Copyright, Licensing, and the Law of E-Books Tomorrow

From the description:

Copyright, Licensing, and the Law of E-Books (ALA TechSource Workshop)
A 90-minute workshop, Wednesday, February 6, 2013, 2:30pm Eastern/1:30pm Central/12:30pm Mountain/11:30am Pacific

Along with their popularity and convenience, e-books bring their own set of challenges to libraries. If you manage an existing e-book collection or are in the planning stages, the following questions will already sound familiar: as your library acquires e-books, do you acquire ownership or access? How do the rights granted for lending print books change in a digital environment? How does the concept of First Sale apply to library materials, and what is its current application to library e-books? Lending and licensing models are in flux, and new players are entering the e-book marketplace, making up-to-date guidance even more necessary. In this workshop Mary Minow from LibraryLaw.com will take you on a pragmatic journey through the law of e-books, cutting through the jargon to give straight answers to common questions. With an understanding of the legal underpinnings of library e-book lending, you’ll be able to plan an effective e-book strategy for your library. Among the topics to be explored:

An introductory review of major e-book platform vendors and emerging library-based projects

• Is First Sale in jeopardy, as some say?
• The implication of a recent court decision, The Authors Guild v. Hathitrust, with regard to Fair Use
• How the so-called Library Exception (Section 108), which permits libraries and archives to make copies for interlibrary loan, preservation and replacement, applies to e-books
• Conditions and e-book applications of Section 121, also known as the Chafee Amendment, which allows authorized entities to copy and distribute some copies to persons with print disabilities
• What to look for in licensing language and provisions 

Go here for registration information about this online event. [JH]

ALA Releases E-Book Business Models: A Scorecard for Public Libraries

From ALA's Digital Content and Libraries Working Group follow-up report, E-Book Business Models: A Scorecard for Public Libraries (Jan. 25, 2013).

The Digital Content & Libraries Working Group (DCWG) began documenting and describing attributes of various licensing arrangements libraries may have with publishers in the August 2012 report Ebook Business Models for Public Libraries. Now we are pleased to share The Ebook Business Model Scorecard, which more fully examines the variables often seen in ebook license agreements or contracts. At the same time, the variables, when considered as a whole, can help libraries conceptualize licenses holistically instead of fixating on one aspect of a contract in isolation.

It is worth noting that licensing models for ebooks are in flux. Many libraries are experimenting with the development of their own licensing schemes, some already entering into agreements with independent publishers and self-publishing groups. This document focuses on the kinds of licensing terms we see generally in the ebook industry at this time, and the kinds of variables libraries should consider when bargaining with publishers, or when libraries determine that they want to develop their own business models, as some proactive libraries already have done.

(Emphasis added.)

Recommended. [JH]

Beyond the Initial Construction and Implementation Phase: Examining Institutional Strategies for Digital Content

In Sustaining Our Digital Future: Institutional Strategies for Digital Content, Ithaka S+R examines "the strategies that institutions have in place for supporting digital content resources beyond their initial construction and implementation". The report "is both an assessment of the university environment as a host for digital content and an exploratory look at how cultural heritage institutions think about and plan for sustaining and enhancing the value of their digital collections." Quoted from the announcement. A snip from the Executive Summary:

Although the most visible signs of our embrace of digital media belong to the world of commercial entertainment and the iPads, e-readers and smartphones we use to consume it, the shift taking place in scholarly communications is proving to be no less transformative. It is not only data sets and scholarly articles that are being created, but dynamic digital resources — websites, digital collections, databases of crowdsourced or born digital content — and they pose opportunities and challenges that are all their own. Aside from the riskiest of experiments in digital innovation, it has become clear that a great deal of the content that libraries and scholars are creating today is expected to endure.

However, whose responsibility it is to look after this content is still unclear. In the United Kingdom, the current political and educational context offers urgent and specific reasons for institutions of higher education to support the outputs of its faculty: declines in government spending and national mandates for open access of scholarly outputs have encouraged this conversation. Meanwhile, the potential for use and re-use of this content has never been greater. While the hot issues around big data sets and peer-reviewed research articles often take centre stage, this study focuses on those digital content resources that require some form of support and management even after they are built. How are institutions supporting and maximising the value of the digital content their faculty and staff create?

Hat tip to DigitalKoans. [JH]

DPLA: A noble but controversial effort to create a national digital library system

The DPLA initiative may not be high on law librarians' "event horizon" at the moment but it has produced a fair amount of concern and criticism in public and education library circles. In his recent LLRX article, David H. Rothman writes:

Beyond doubt, the Harvard-originated national digital library initiative is an underachiever in K-12 matters. That's merely one area where the DPLA could better serve America's libraries and their users. Some other problematic areas range from family literacy to the content creation needs of local libraries, and preservation and digital divide efforts. Ahead, while urging massive incremental funding of the DPLA despite its extremely fixable shortcomings, I'll put forth specific remedies.

See Rothman's article, The risks if the DPLA won’t create a full-strength national digital library system: Setbacks for K-12, family literacy, local libraries, preservation, digital divide efforts? for more. Highly recommended. [JH]

Short Takes On The News: Digital Libraries, Law School Dean Salaries, and Law School in Two Years

CNET is reporting on one version of the digital library of the near future.  It will be realized in Bexar County, Texas, which includes the city of San Antonio.  There will be no books, only rows of terminals.  Residents will be able to check out e-readers for loan periods up to two weeks.  The County will spend about $250,000 for access to the first 10,000 books available through the system.  The design of the facility is said to be based on an Apple store.  The library system is adding the digital library to its existing system.  More details are in the San Antonio Express-News.

Las week I referenced an editorial written by Massachusetts School of Law Dean Lawrence Velvel where he ripped into the ABA and other law school actors for creating unnecessary overhead and raising the cost of law school.  One of his targets was the library and its personnel and associated costs.  The Boston Globe wrote a story yesterday that disclosed the salaries of deans from various schools.  Dean Velvel comes in at $292,861.  His salary is modest compared to others.  John F. O'Brien of the New England School of Law is up there at a whopping $867,358.  The Dean at Georgetown is around $300,000 while the Deans at Michigan, Texas, and Virginia are in the mid $400,000s.  So tell me again while law school is so expensive?  More information from the Globe is here and here.

Karen Sloan in the National Law Journal reports that New York educators and court officials will meet on January 18^th to discuss whether law students should be allowed to take the New York Bar after two years of law school.  I would think that law schools would be opposed to the idea.  Anyone who passes would certainly deprive law schools of a full year of tuition income in a climate where enrollment is dropping.  The fact that a major court such as the New York Court of Appeals would even consider such a move must be scary.  It could propel other courts to take similar action.  Schools, at the very least, will need to explain the value of the third year.  I’m looking forward to hearing how this turns out.  [MG]

paidContent's Jeff John Robert's New Book Takes a Look Inside Google's Engineering to Create the World’s Biggest Library

In The Battle for the Books: Inside Google’s Gambit to Create the World’s Biggest Library (GigaOM, 2012), Jeff John Roberts "describes the technological and legal twists and turns of the story through the people affected by it: the authors who feared losing rights to their work, publishers facing lost revenue, technologists pushing for a world where all written knowledge is digital, and librarians who believe in open access to information." From the blurb:

At the dawn of the e-book era, librarians predicted it would take 1,000 years to scan the world’s books. Then, one company set about to do it in five.
 
Even by the search giant’s standards, it was a bold move. As Google beat a path to the door of the world’s libraries and proceeded to scan everything from War and Peace to Watership Down, the company’s quest to build the largest library triggered a power struggle of massive proportions, as everyone from Amazon to the Justice Department and writers across the world rushed to halt the project.
 
In this compelling book, Jeff Roberts gives the first detailed account of Google’s grand plan to build a modern day Library of Alexandria and its subsequent undoing, and shows how Google’s gambit changed the way we view knowledge in the digital era.

For an excerpt see The technological imperative which includes links to Amazon, Barnes & Noble, and iTunes. At $2.99 for the ebook, you can't go wrong. Highly recommended. [JH]

Google Asserts Fair Use To Defeat Class Action Status In Book Scanning Case

Google filed its brief on Friday contesting Judge Chin’s decision to certify the plaintiffs in the book scanning case as a class.  Judge Chin at the time of certification denied Google’s request to stay the action and set the case for trial.  The Second Circuit stayed proceedings in the case pending the outcome of the appeal.

Google essentially argues three points:  1) the class is divided over the benefits or harms to authors due to the scanning project; 2) Google is allowed to present the fair use defense and the application to the facts may vary with individual books; and 3) each class member’s right to recovery will vary depending on the proof of copyright and registration.  Google relies on the Wal-Mart v. Dukes class action case decided by the Supreme Court in the last term, the Georgia State e-reserve case, and the HathiTrust case among others for its positions.

Google questioned the Authors Guild’s representation to the class by citing its own expert survey that showed 58% of author responders approved Google scanning their works.  The Authors Guild has the burden of showing that its interests do not conflict with that of class members according to the filing.  So far, that showing has not been made.

Other case law allows Google to mount the fair use defense in this action.  Other cases, such as the Georgia State e-reserve case weighed fair use against the type of use made for individual volumes.  Some of this measured the amount of use and the purpose for which it was used.  I can imagine the Authors Guild arguing against this simply on the basis that Google is a for-profit entity where a public university is not.  Google nonetheless has the right to assert that defense, especially in light of the HathiTrust case (and other precedent) where the District Court found the electronic index created as a result of scanning to be transformative and fair use.

This leads to the third argument that the class is potentially unrepresentative due to the amount of proof necessary to show a given book or author is even part of the case.  Google offers that registration records would have to be produced on individual works and evidentiary hearings would be held to see if a book qualifies for a remedy under the case.  The fact that different authors may have different interests in their works falls against class certification.  I imagine the Authors Guild would argue against these points when its brief if filed.

A copy of the brief with additional commentary and comments is available here at paidContent.  [MG]

How Open Is It? A Guide to Understanding the Core Components of Open Access

Hat tip to Legal Research Plus for calling attention to the SPARC (Scholarly Publishing & Academic Resources Coalition), PLOS (Public Library of Science) and OASPA (Open Access Scholarly Publishers Association) production of its 2-page checklist guide, How Open Is It? Open Access Spectrum — OAS: A Guide to Understanding the Core Components of OA. The guide  was prepared for this year's Open Access Week: Set the Default to Open Access (October 22-28, 2012). See SPARC's press release for download links to the Guide, FAQ and PowerPoint.

From the Guide

How To Use This Guide:

In 2002, the Budapest Open Access Initiative articulated the basic tenets of Open Access for the first time. Since then, thousands of journals have adopted policies that embrace some or all of the Open Access core components related to: readership, reuse,copyright, posting, and machine readability. However, not all Open Access is created equal. For example, a policy that allows anyone to read an article for free six months after its publication is more open than a policy that creates a twelve month embargo; it is also less open than a policy that allows for free reading immediately upon publication.

This guide will help you move beyond the seemingly simple question, “Is this journal open access?” and toward a more productive alternative, “How Open Is It?”

Use it to:

• Understand the components that define Open Access journals
• Learn what makes a journal more open vs. less open
• Make informed decisions about where to publish

[JH]

How Open? Survey of Online State Primary Legal Resources

This is the sixth annual Open Access Week so it seems appropriate to see just how far states have progressed to provide open access to their primary legal resources online.

AALL: 2011-2012 Preliminary Analysis of AALL’s State Legal Inventories (September 2012; Updated October 2012)

Sunlight Foundation: State Regulations Online wiki page and Matt Rumsey's blog post, Survey: How Many States Publish Rules and Regulations Online?

[JH]