Law Librarian Blog

Harvard University Library Transitions into the "Digital Future"

Recently Harvard University Library launched its new web portal in beta. For details, see the Harvard Gazette's Library in transition: Harvard moves rapidly into digital future, while preserving past and the University Library's Vision Statement. The Vision Statement includes the following animation entitled "The Future of the Harvard Library". [JH]

Authors Guild Loses Its Suit Against HathiTrust

The lawsuit filed by the Authors Guild, foreign associations, and individual authors against the HathiTrust and university defendants came to an unceremonious close yesterday.  I’ll start with the conclusion of Judge Harold Baer’s opinion:

I have considered the parties’ remaining arguments and find them to be without merit.  For the foregoing reasons, Plaintiffs’ motions are DENIED.  Defendants’ motion for judgment on the pleadings is GRANTED in part and DENIED in part:  the Associational Plaintiffs have Article III standing; the U.S. Associational Plaintiffs lack statutory standing; and Plaintiffs’ OWP claims are not ripe.  Defendants’ and Defendant Intervenors’ motions for summary judgment are GRANTED:  their participation in the MDP and present application of the HDL are protected under fair use.  The two unopposed motions for leave to file briefs as amici are GRANTED.  The Clerk of Court is instructed to close the seven open motions, close the case, and remove it from my docket.

How’s that for finality.  The case came about through the agreement several university libraries made with Google to scan their collections as part of the Google Book Project.  The defendant universities were free to make use of these scans under the agreement.  This birthed the HathiTrust Digital Library.  The parallel litigation against Google continues, though the plaintiff publishers recently dropped out leaving the Authors Guild as the principle antagonist Plaintiff in that case.  I note that the publishers declined to join this suit.  The case against the HathiTrust was designed to secure a ruling that the scan and possible distribution of library collections was not fair use.  As we can see, that goal failed.  Several issues presented themselves in this case

To make clear, the abbreviated references in the quoted paragraph, MDP means Mass Digitization Project, OWP means Orphan Works Project and HDL means HathiTrust Digital Library.  Judge Baer addressed several issues, one of which is whether the trade associations had standing to file suit on behalf of their members.  The answer to that question was essentially yes, via the Constitution rather than the Copyright Statute itself.  While important to the litigation, it is not the central issue to the broader library community.

The Orphan Works Project was intended to make available scanned titles that were in copyright though the copyright holder could not be identified.  One of the individual author plaintiffs was misidentified as not findable by the University of Michigan.  The mistake caused the University to halt the program and re-evaluate the process it used to designate a work as orphan.  The Authors Guild sought a holding that the OWP violated the copyright law.  The University argued and Judge Baer agreed that such a ruling would be based on something speculative since there was no current program in place and there was no replacement in the office.  This was resolved by the ruling that the issue was not ripe for adjudication.

The first real issue was whether Section 108 of the Copyright Act precluded the library from utilizing fair use as a defense to a prima facie claim of copyright infringement.  The section defines what libraries can do with the materials in their collections.  Creating archival copies is allowed when an item is damaged or lost.  The Guild essentially argued that the scanning project more than exceeded the allowable uses under Section 108.  Section 108(f)(4) states however:

(f) Nothing in this section—

* * * *

(4) in any way affects the right of fair use as provided by section 107, or any contractual obligations assumed at any time by the library or archives when it obtained a copy or phonorecord of a work in its collections.

Judge Baer said the argument failed on the clear statutory text.  The next question was whether the activity of the library qualified as fair use.  It did as Judge Baer balanced the four non-exclusive factors listed in Section 107.  I won’t go through the detailed analysis.  One of the main reasons used by Judge Baer was the transformative nature of the scans.  They did not act as an alternative to the book in the market.  The transformation came in the digital index created out of the scans.  Scholars and researchers could make use of the index to search for word occurrences and references to pages with an indication as to how many hits appeared on a page.  The Guild argued that it contemplated the creation of a licensed service that may offer the same capability.  Judge Baer, citing case law, said the courts do not preclude an allowable alternative because something may happen in the future.

One of the other major factors in Judge Baer’s decision is the relevance of the Americans With Disabilities Act to the case.  The University used the digital collection to make works more easily available to blind and seeing-impaired students.  While the scanning project was not mandated by the Act, the use of the materials once scanned was authorized.  I won’t go into the arguments raised by the Guild, but I will offer part of Judge Baer’s response from footnote 25:

²⁵Plaintiffs suggestion at oral argument that print-disabled individuals could have “asked permission” of all the rights holders whose works comprise the HDL borders on ridiculous. Aug. 6, 2012 Tr. 11:13–12:8.

There were other parts of the opinion where the Guild’s arguments received similar (and deserved) treatment.

So what is next?  I assume the Guild will appeal to the Second Circuit.  There is no statement on the Guild’s web site (at least of this writing) on the outcome.  I would suspect this ruling would bolster Google’s defense against the Guild in the parallel litigation in Judge Chin’s courtroom.  The case is not quite the same in that Google claims indexing and providing snippets is fair use.  The use made by the HathiTrust defendants does not offer snippets or make the underlying scan available otherwise.  Assuming this case holds up on appeal, Google would be safe to do the same if it came to that.

Further analysis is available from Kevin Smith on the Scholarly Communications @ Duke blog.  There are links to a copy of the opinion.  Both are well worth reading.  [MG]

A Bit More On Suppressing Books

I draw your attention to an article in The Atlantic called How To Make A Book Disappear by Maria Konnikova.  The book in question is Jonah Lehrer’s Imagine, which has been pulled from sales by its publisher over alleged fabrications.  Konnikova reviews other titles that have met the same fate though she is concerned that in the digital age books may not also disappear, but may be suppressed by publishers without explanation.

She recounts the lesson of Amazon years back having pulled George Orwell’s 1984 from Kindles because the company did not have the rights to sell electronic copies in the United States.  Most agree that episode was a heavy handed reaction to a legal question of rights.  The Lehrer removal wasn’t nearly as unilateral.  Copies that existed on electronic devices stayed.  All links, however, were removed from official commercial sources.

I wrote yesterday about publishers’ refusal to sell e-books to libraries as a type of banned books.  I also discounted the fear of piracy as one of the excuses publishers generally use to keep their product out of the digital hands of library users.  It really is a matter of control.  I agree with Konnikova that we should be concerned when digital systems can be used to censor content without a real explanation.  I would only add that the Internet is a lot like Las Vegas:  what happens on the Internet stays on the Internet.

I searched the words Jonah Lehrer Imagine PDF in Google and found a copy of the advanced uncorrected proof in less than 30 seconds.  For those who condemn Google for making this available, the same search in Bing offered the same links.  My point is not to promote literary piracy.  Rather, the point is that piracy regrettably becomes the only alternative when no legal means for acquiring content is available.  [MG]

More Thoughts On Libraries And e-Books

Next Sunday marks the beginning of Banned Books Week.  While we think of banned books in the context of censorship, there is another.  In this case I’m speaking of publisher hostility to libraries when they refuse to sell e-books to libraries or, in the alternative, sell them with attached onerous conditions.  American Library Association Maureen Sullivan issued an open letter to publishers today that highlights the concern:

It’s a rare thing in a free market when a customer is refused the ability to buy a company’s product and is told its money is “no good here.” Surprisingly, after centuries of enthusiastically supporting publishers’ products, libraries find themselves in just that position with purchasing e-books from three of the largest publishers in the world. Simon & Schuster, Macmillan, and Penguin have been denying access to their e-books for our nation’s 112,000 libraries and roughly 169 million public library users. 

Let’s be clear on what this means: If our libraries’ digital bookshelves mirrored the New York Times fiction best-seller list, we would be missing half of our collection any given week due to these publishers’ policies. The popular “Bared to You” and “The Glass Castle” are not available in libraries because libraries cannot purchase them at any price. Today’s teens also will not find the digital copy of Judy Blume’s seminal “Forever,” nor today’s blockbuster “Hunger Games” series.

I realize that publishers see libraries as a threat when it comes to lending e-books.  Their first fear is piracy, and their second is that each lend represents a potential lost sale.  I can appreciate the concern about piracy, though I think the fear that libraries will be havens for piracy is misplaced.  Libraries, by and far, are law abiding citizens who tend not to violate their licensing agreements for electronic content.  If there are disputes, such as the Georgia State e-reserve case and the HathiTrust litigation, they are handled in court.  Piracy is happening to e-books despite their lack in a library’s collection.  I would think that many readers would use the library for viewing content if it were a legal alternative.  With or without library lending, e-book piracy is always an alternative to the determined.

I’m of the belief that while library lending is an alternative to purchase for some, not everyone who borrows will buy.  This is true in the physical world as it is in the digital.  I also believe that the lack of a large selection of e-books in a library may drive some to purchase, but certainly not everyone.  The alternatives there are to borrow a printed copy, or wait until one becomes available.

As Banned Books Week will begin, think of all the e-books that are banned from libraries due to a publisher’s desire to keep them out the hands of the borrowing public.  [MG] 

Publishers To Appeal Georgia State e-Reserve Case

As readers know, the recent Georgia State e-reserve case was decided mostly in favor of Georgia State.  It was announced earlier this month that the publishers are appealing.  I refer you to the cogent analysis by Kevin Smith at the Scholarly Communications @ Duke blog on that.  He has links to the press releases by the Association of American Publishers and the joint statement by Oxford, Cambridge, and Sage on the decision and the forthcoming appeal.  Here are some quotes from them with my short comments. 

From the AAP statement:

If left uncorrected, these and other errors will encourage educational institutions across the country to engage in massive infringement of copyright at a great cost to the entire academic community. Publishers, authors, faculty and students are members of an educational ecosystem in which the creators and users of learning materials play complementary roles. Publishers identify outstanding authors and editors, transform manuscripts into leading scholarly works and produce, distribute and market the essential tools of teaching and learning. Publishers and authors must have the incentives to continue contributing to this ecosystem.

We are optimistic that the 11th Circuit Court of Appeals will provide a more balanced view of the fair use exception to copyright as applied to the use of digital content in education.

If uncorrected unchanged, libraries will have a better idea of the parameters of fair use in using electronic course materials compiled on site for integration in campus courseware.  I thought the Judge in the case went into excruciating detail on determining which works were covered by fair use and how she came to that conclusion.  None of it seemed outrageous or out of line in an area of law where congress and the courts seem to dance around the parameters of fair use.

From the joint statement:

This case had the potential to mark a significant first step toward addressing the need for clarity around issues of copyright in the context of higher education, where current practices around fair use in a digital environment vary widely and could benefit from sound judicial guidance. Our hope was that the District Court would provide that guidance.

Instead, the Court’s rulings, culminating in the August injunction decision, shift radically from long-accepted fair use principles and introduce, among other errors, unsustainable policies regarding the proportion of a work not readily available for digital licensing that can be digitally copied without restriction. We have no alternative but to appeal, to protect our authors’ copyrights and advocate for a balanced and workable solution

The case did mark a significant first step toward addressing clarity.  You just wound up on the losing side.  You asked the Court for guidance and you received it.  Maybe it wasn’t guidance you really wanted, but something else.  I don’t believe the Judge gave the library carte blanche to copy anything it wanted willy-nilly.  The Court bent over backwards to balance the equities.  The statement sounds more of a complaint that the troublesome doctrine of fair use exists at all.  I look forward to the briefs and the oral arguments.  [MG]

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]

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]  

GSU Wins Again In E-Reserve Case

Judge Orinda D. Evans issued an order on Friday addressing the plaintiff publishers’ requests for relief in the Georgia State University electronic reserve copyright case.  The publishers filed the proposed order and memorandum of law 20 days after the Court had found the University infringed on 5 of the 126 works at issue.  They had sought strict limits on the size of an excerpt that may be used:

4. constitute a decidedly small excerpt in accordance with the following criteria:

a. if from a book that is not divided into chapters or contains fewer than ten chapters and for which a license for digital academic use is available, do not exceed ten (10) percent of the pages in the Work; or

b. if from a book that contains ten or more chapters and for which a license for digital academic use is available, do not exceed one (1) chapter; or

c. if, after a reasonable investigation that shall at a minimum include consulting both the copyright owner and its authorized agent (such as Copyright Clearance Center, Inc.), GSU determines that the digital excerpt cannot be licensed or purchased for use on GSU Electronic Course Systems, and that the excerpt is sufficiently small so as not to cause actual or potential market harm to the Work;

Judge Evans rejected this as well as the request that the publishers have access to various GSU systems for the next three years to audit compliance.  Her rationale is that the number of infringements was few in relation to the claims presented and that GSU had a good faith belief that the use of the infringing works was fair use.  Rather, the Judge ordered declarative relief:

Access to excerpts shall be limited by a passcode or password to only the students enrolled in the course, and then only for the term of the course.  Students must be prohibited by stated policy from distributing copies to others.  They must be reminded of the limitations of the copyright laws each time they access excerpts on ERES.  Each chapter or the excerpt must fill a demonstrated, legitimate purpose in the course curriculum and must be narrowly tailored to accomplish that purpose.

Judge Evans noted that the use of 18.52 percent of a musical score by Franz Liszt where electronic permissions were not available did pass a fair use analysis, though that amount was likely close to the upper limit.  Her point was fair use analysis had to be made on a case by case method.  If the publishers were seeking something akin to the CONTU guidelines, Judge Evans did not deliver.  The publishers’ proposed order reserved the right to appeal any denial of its terms.  I would expect the 11^th Circuit will be docketing this case in the very near future.  It looks good, so far, for GSU.  The Court found that the University was entitled to attorneys’ fees as the prevailing party in the case.  That should frost the plaintiffs and the Copyright Clearance Center which motivated the claims against GSU and funded the litigation.

More commentary is available from the Chronicle of Higher Education and Kevin Smith’s blog post at Duke University.  Both have links to Judge Evans’ Order.  The plaintiffs' rejected order and memorandum is available through the following links:  Download GSU 426-1 (memo) and Download GSU 426-2 (order).  [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]

Google Files It's Brief For Summary Judgment in Scanning Case

Google filed its memorandum of law supporting its motion for summary judgment in the litigation with the Authors Guild over the Google book scanning project.  Google’s attorneys make some interesting points.  Among them, Google’s scanning project is a transformative work and does not substitute for the original book.  The transformation takes place by converting the text into a searchable index for benefit to the public.  The index becomes a discovery tool that helps a searcher find relevant materials with the display of a snippet amounting to 0.0075% or less of the work.  Google uses several examples of individuals who are featured in multiple works but never show up in the metadata contained in bibliographic collections.

Google states further that the indexing project has not caused any lost sales to authors as no market exists for comprehensive word indexes such as the one Google created.  Google claims it expands the market for books by pointing searchers to sources where the work may be purchased.  The fact that Google is a commercial entity does not weigh against it as it places no ads on “about the book” screens.  Any ads that do appear on other screens do not affect the market for the books in any event.

Google describes the Guild as inconsistent.  It points to the Guilds own statements encouraging its members to offer the introductory chapter of their works on the Internet for free as a method of discovery.  Google also cites the Amazon program where prospective purchasers can see parts of the text.  The latter is licensed without payment by Amazon, and Google has a similar program.  The existence of a license, however, does not affect the determination of fair use.

There is even a little bit for the libraries in the HathiTrust litigation.  Google notes that the books are secured on its servers.  Libraries may only download encrypted copies of works scanned from their own collections even if a duplicate exists between collections.  Google’s use of the text to generate an index has never resulted in an unauthorized distribution of a work to the general public. Snippet view is protected to the point where anyone can craft searches to collect snippets that potentially would recreate the work. 

The memorandum tracks each of the four statutory guidelines the courts use to determine fair use and makes strong arguments in favor of Google’s position, backing it up with case citations for support.  I think from the Guild’s perspective this comes down to an issue of control as to how and when authors make their works available, but for that pesky fair use that Google claims.  The Guild obviously wants fair use to be as limited as possible.  I would assume that the Guild’s response will be as strong in opposition to Google’s claim.  I’ll report on that when I see a copy.  paidContent has commentary on the brief, including an embedded copy of the document via Scribd.  [MG]  

Briefs Filed In HathiTrust Case Claim Fair Use Defense

Briefs were filed last Friday in the HathiTrust case calling for the Judge to rule that the libraries use of the scanned corpus is fair use.  The brief filed jointly by the American Library Association, the Association of College and Research Libraries, The Association of Research Libraries, and the Electronic Frontier Foundation recite a litany of uses for the scanned material that qualify as a fair use of the material.  These include citation checking, creating metadata about individual works, and searches through the material that assist collection development efforts.  That last one leads to commercial purchases which benefit the authors.

The second brief was filed by various humanities and legal scholars who describe uses for the scanned material that benefit their work and the general public at large through advanced analysis of the content.  Both briefs stress that all of these positive outcomes happen without making the scanned works available to the general public or even necessarily to the scholars.  Essentially, the security of the collection is maintained, minimizing the concerns of the Authors Guild.  The Guild, on the other hand, continues to argue that the mere scanning of a book by a library without express permission of the rights holder exceeds what the copyright laws allow, and in any event should never be considered fair use.

A second line of argument in both briefs suggests the Guild is disingenuous in its line of argument.  The Guild filed suit early on against Google for its role in the scanning project and never sought any preliminary relief to shut down the scanning project while the commercial side of the dispute was litigated.  The briefs criticize the Guild’s argument that a legislative solution is the best outcome of the dispute.  That, they say, is speculative and may never happen.  They recite the history of legislative attempts to address digitization and licensing that Congress never enacted.  Some of these were defeated through opposition by the Guild and other organizations of content creators.

I believe that the briefs make a strong case for fair use of the collection, whether in these circumstances or in those in the parallel Google book scanning litigation.  Google’s massive scanning efforts are the basis of both suits.  Whether a judge agrees is another question.  The judiciary, it seems, is uncomfortable with making such a sweeping decision, though the courts may have no choice at some point.  The scanning and use of the materials by Google and the HathiTrust libraries is or is not fair use.  They aren’t claiming anything else.  Get on with it and decide the issue.  [MG]

Class Action Antitrust Suit Against Apple and Major Publishers To Go Forward

Judge Denise Cote denied the motion to dismiss the class action filed by various states against the defendant publishers and Apple yesterday in a signed order (via Gigaom).  The motion came at the pleading stage, meaning Judge Cote ruled on the plausibility of the claims against defendants under the antitrust laws.  This requires the judge to take them as true for purposes of deciding the motion.  Her analysis indicates the plaintiffs overwhelmingly state a claim.

The Judge takes us through the history of the publishing industry’s relationship with Amazon.  Here is a tale of industry fear at the public perception on the price point of $9.99 for e-books, feeble attempts at reforming Amazon’s pricing, and Apple’s entry into the e-book market as a vehicle to bring Amazon into line. 

Apple’s agreement with the publishers allowed for the agency model for e-book sales, meaning the publishers would set the price subject to Apple’s 30% commission, and included a most favored nation clause that would prevent any other retailers from undercutting Apple.  The defendant’s characterized this as parallel conduct that was a simple, independent reaction to market pressures.  Public statements by several of the defendants undercut this, including quotes cited by Judge Cote.  From the opinion:

Apple also revealed that the prices for eBooks on the iPad would be higher than $9.99.  Nevertheless, Apple’s CEO, Steve Jobs (“Jobs”), told a reporter at the event, “The prices [on the iPad and the Kindle] will be the same,” and “Publishers are actually withholding their books from Amazon because they are not happy.”  The following day, Jobs told his biographer the following:

Amazon screwed it up.  It paid the wholesale price for some books, but started selling them below cost at $9.99.  The publishers hated that -- they thought it would trash their ability to sell hard-cover books at $28.  So before Apple even got on the scene, some booksellers were starting to withhold books from Amazon.  So we told the publishers, “We’ll go to the agency model, where you set the price, and we get our 30%, and yes, the customer pays a little more, but that’s what you want anyway.”  But we also asked for a guarantee that if anybody else is selling the books cheaper than we are, then we can sell them at the lower price too.  So they went to Amazon and said, “You’re going to sign an agency contract or we’re not going to give you the books.”  . . . Given the situation that existed, what was best for us was to do this aikido move and end up with the agency model.  And we pulled it off.

She further quoted HarperCollins parent News Corp. CEO Rupert Murdoch as saying:

Yeah we don’t like the Amazon model of selling everything at $9.99 they don’t pay us that.  They pay us the whole wholesale price of $14 or whatever we charge but we [sic] I think it really devalues books and it hurts all the retailers of the hard cover books. . . . Amazon, sorry, Apple in its agreement with us, which is [sic] not been disclosed in detail, does allow for a variety of slight of [sic] higher prices.  There will be prices very much less than the printed copy of books.  But still it will not be fixed in a way that Amazon has been doing it.  And it appears that Amazon is now ready to sit down with us again and re-negotiate pricing.

John Sargent, CEO of Macmillan acknowledged concern about pricing and that moving to the agency model meant less profit, but resulted in a more stable market.  These kinds of statements along with a take-it or leave-it ultimatum to Amazon for adopting the agency model are some of the points used by the Judge in sustaining the complaint. 

The Judge cited Supreme Court precedent that countered any characterization of the allegations as insufficient and generally dismissed the arguments that this was all innocent coincidence on the part of the defendants.  Jude Cote posed a hypothetical where each of the parties acted independently and conducted its own cost-benefit analysis in switching to the agency model.  She extended the analysis to several different scenarios and concluded that it didn’t hold up:

This hypothetical reveals that, from the publishers’ perspective, the switch to the agency model had the hallmarks of a classic collective action problem. Whereas many of the benefits of this switch (like increased consumer perceptions of book value and a slower industry-wide transition from the brick and-mortar retail model) were shared across the publishing industry and not susceptible to capture by any single publisher, most of its costs (like decreased revenue per sale and, if a publisher was a first or sole mover, decreased market share) were borne individually. Moreover, in order to compel Amazon to abandon the retail model, a critical mass of publishers was needed. No single publisher would have had the leverage to force Amazon to make the switch. For these reasons, it is at least plausible that no Publisher Defendant would have signed an agency agreement with Apple absent a firm understanding with its rivals that they would do the same.

Apple shared the publishers’ interest in solving this collective action problem. Although the Complaint does not claim that Apple had an interest in higher retail prices, per se, it does plausibly allege that Apple had an interest in limiting retail competition. The Agency Agreements were a means to accomplish both these goals through a single tool. The switch to the agency model meant that the Publisher Defendants could control retail prices, whereas the MFN clauses protected Apple and its 30 percent commission from price competition by other retailers. 

Moreover, Apple had a strong incentive to encourage the Publisher Defendants to act collectively: If a critical mass of publishers had not agreed to these terms and forced an industry-wide switch to the agency model, Apple would have faced stiff competition in establishing its iBookstore. Under such a scenario, the iBookstore would have been able to offer only a limited selection of eBooks at higher prices than stores operating under the wholesale model. Apple would almost certainly have faced a greater challenge in entering the eBooks market and expanding its market share in such circumstances.

Each side, of course, has to present evidence and prove their allegations or defences in the case.  This case is going forward without any doubt on the part of the Judge.  [MG]

Georgia State e-Reserve Case Decided

The case filed by publishers against Georgia State University over the use of materials in e-reserves was decided last Friday.  The case is not available on the Northern District of Georgia web site.  There is commentary by Kevin Smith from the Duke University Libraries, here.  He indicates that the case is a mixed bag of results, with the publishers failing to establish the most egregious claims of infringement by the University.  There is, however, some liability for some of the activity by the University and some restrictions on the volume of content that can be placed on e-reserves.  The opinion is some 350 pages.  I'll be commenting further on this once I read the full opinion.  I'm curious if any of the reasoning in the opinion will have any effect on the HathiTrust case.  [MG]

Browsing On A Sunday: The Princeton Review in Trouble, the DPLA, and Surveillance Backdoors

The Princeton Review, creator of an alternative law school rankings list, guides to law schools, and test prep materials, is being sued by the feds under the False Claims Act.  The Review allegedly received reimbursements for services that never happened.  The complaint alleges the Review charged the Department of Education for thousands of hours of tutoring underprivileged students in New York City between 2002 and 2010 that never happened.  Employees falsified records that included a claim for teaching 74 students on New Year’s Day.  It sounds pretty ugly for such a prominent company.  More information is available at the U.S. Attorney’s Office for the Southern District of New York.

Ars Technica is reporting on last week’s conference to help create the Digital Public Library of America.  It’s an interesting idea, to put all of America’s library holdings online.  I don’t think anyone has any illusions about how hard this can be.  Manpower and organizational issues aside, I can’t imagine the copyright issues that confronted Google in its scanning project would be any different for the DPLA.  The people who own content may be just as obstructionist when it comes to the DPLA.  More on the ideas that were discussed at the conference is here.

Declan McCullagh reports from CNET that the FBI is seeking legislation (as of now not introduced) that would place mandatory surveillance back doors on social networks, VoIP, and web e-mail services.  The Bureau is lobbying technology companies not to oppose the law when it eventually gets introduced.  The proposed law would amend the Communications Assistance for Law Enforcement Act (CALEA) to extend coverage to companies beyond telecommunications providers.  The Bureau sees this as a way to keep up with communications technology.  McCullagh says that the FBI is seeking consensus in the government before it goes forward.  The White House is not inclined to move on this, though there are members of the administration, such as Joe Biden, who have promoted similar legislation in the past.  I can’t imagine any of the agencies charged with managing security would have any conceptual problems with the proposal.  Levels of privacy only impede them.  I expect movement on this after the election.  Why should advertising companies have all the fun?

CRS has a number of reports on online privacy, including Privacy Protections for Personal Information Online (R41756, April 6, 2011), Privacy:  An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (98-326, December 3, 2009), Privacy:  An Abridged Overview of the Electronic Communications Privacy Act (R41734, March 30, 2011), and a more complete version, Privacy:  An Overview of the Electronic Communications Privacy Act (R41733, March 30, 2011).  There is also Digital Surveillance:  The Communications Assistance for Law Enforcement Act (RL30677, Updated June 8, 2007).  [MG]

Libraries Are Obsolete

In an age of rapid digitalization Harvard Library Strategic Conversations hosted "Libraries Are Obsolete: An Oxford-Style Debate” on April 18, 2012. Here's the much anticipated video of the event which featured Dr. James Tracy, Headmaster, Cushing Academy, and R. David Lankes, Professor and Dean’s Scholar for the New Librarianship, University of Syracuse iSchool and Director of the Information Institute of Syracuse speaking in favor of the libraries are obsolute proposition. They were opposed in the debate by Susan Hildreth, Director of the Institute of Museum and Library Services, and John Palfrey, soon to be former Vice Dean for Library and Information Resources and Henry N. Ess III Professor of Law at Harvard Law School.

Steve Matthews offers a summary and critique of the debate on 21st Century Library Blog.

Folks interested in this issue also may want to read two recent articles: Nicholas Carr's Techonlogy Review article, The Library of Utopia, and Steve Coffman's Searcher article, The Decline and Fall of the Library Empire. [JH]

FDLP and Digital Gov Docs: Does "the emergence of a predominantly digital FDLP .. call the capacity of the statutory authorities GPO exercises into question"?

The Congressional Research Service reviews this matter in its recent Federal Depository Library Program: Issues for Congress report.

From the Introduction:

In the past half-century, information creation, distribution, retention, and preservation has expanded from a tangible, paper-based process to include digital processes managed largely through computerized information technologies. Today, government (and most other) information is typically “born digital,” or originated as a digital product such as a word processing document or spreadsheet. The material may then be produced in tangible, printed form, but is with greater frequency distributed by electronic means via website or other electronic dissemination technology, and retained for archival purposes in searchable electronic databases. In many cases, born digital material that previously appeared only in paper form is available only in digital form. In other cases, digital information, including websites, blogs, datasets, and audio or video content, is not intended for tangible distribution. Some materials are available in both tangible and digital forms.

The transition to digital information raises a number of issues that may be of interest to Congress. Some of the possible concerns focus on access to government information in an environment in which tangible and digital materials are available, and issues related to the security, and authentication of digital materials. Other areas of possible concern include the management and digitization of tangible materials, permanent retention and preservation of digital content, and costs associated with these activities. While issues related to the emergence of digital information have implications for a number of government programs and policies, this report discusses those implications as they affect FDLP. These concerns may be addressed in their own right, or in the context of user demand for FDLP information, for which there is no uniform metric over time, or comparatively among current FDLP institutions.

Hat tip to Legal Research Plus for calling attention to the CRS Report. Free Government Information offers a critique at FDLP CRS Report: Useful with Reservations. [JH]

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]

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]