Law Librarian Blog

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

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

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

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 Please do not quote prices pertaining to new subscribers.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

(Emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

Half-assed B2B Electronic Transactions: Just make up a PIN for eSigning a Thomson Reuters transaction

As reported earlier, based on the initial response CRIV received from Thomson Reuters about requiring the last four digits of a SSN number to execute an electronic B2B transaction, CRIV decided to make a follow-up request "to see if a more concrete explanation on this topic is available." And here is Thomson Reuters "solution":

Should individuals placing orders prefer not to enter the last four digits of their Social Security number, they are encouraged to create a unique, four-digit personal identification number (PIN) to serve as part of their electronic signature. This PIN will serve as a method of verification for the individual placing an order. Customers can make this change when placing an order.

Ah, OK. Let's just be clear that WestMart is targeting the individual consumer for eCommerce transactions, not institutional buyers, by following Amazon's example. LexisNexis hasn't gone quite as far yet but there is no doubt in my mind that the forthcoming closure and mass layoff of sales and customer support employees in Albany indicates that LN will be more fully institutionalizing the Amazon eCommerce model for "efficiency" (read reducing labor costs) purposes.

If WEXIS wants to conduct B2B electronic commerce, both vendors also should mimic the Amazon model for B2B eTransactions. WEXIS should follow what Amazon does by way of establishing an institutional buyer's credit line for eTransactions. Of course, WEXIS also should follow Amazon's very easy online method for returning stuff ordered with credits made to the institutional buyer's credit line account.

If our major vendors are going to follow Amazon's example, don't just do it half-assed for B2B eCommerce. Is that too much to ask? [JH]

"Posted on Behalf of LexisNexis"

"So I just read Lexis’ responses to questions posed by CRIV on it’s eBook program," wrote Jason Wilson in This week in random ad placements: Lexis’ response to CRIV on eBooks, "and when I finished, the following ad appeared at the end of the piece [video below]. Brilliant conclusion."

The ad that appeared in the CRIV Blog post, LexisNexis Response to April 2013 eBook Questions – Posted on Behalf of LexisNexis, when I read it wasn't nearly as good as this one. Thanks Jason! [JH]

Another Vendor Pushback Response to a CRIV Inquiry

A firm librarian alerted CRIV to Thomson Reuters requiring that the last four numbers of an SSN are a required element as part of an eSignature for conducting an online business transaction with the Company. So CRIV asked Thomson Reuters and here is the Company's response:

Our ordering system requires a method to verify the person placing the order, commonly referred to as an electronic signature. The system’s settings require the individual’s name, title and last four digits of their social security number for verification.

Dah, I'm thinking the questioner knew that the SSN number was being used for verification purposes but was thinking there should be some better way to conduct eCommerce in the B2B context.

In Request for Assistance: Requiring Social Security Number as part of eSignature for Business Transactions – Thomson Reuters (includes text of response), CRIV writes

Due to the response, CRIV is following back up on the issue to see if a more concrete explanation on this topic is available. For example, why can’t One Pass Verification be used as an alternative?

(Emphasis added.)

I'm not keen on CRIV's OnePassYourAss suggestion unless the OnePass account system includes specific verification from the buying institution that a OnePass holder is authorized to make purchases billed to the institution. Safeguards need to be established. That's very easy to do by way of Thomson Reuters' OnePass account management system. Just add a check box to each OnePass account listing and set the damn default to "no." Give system authorization only to a master OnePass account manager at each institution to change the setting to "yes" for business-to-business transactions. [JH]

"So What": Dealing with Format Switcheroos

What if hosting eShifted Lexis periodicals as a method for archiving and accessing the PDF issues means hosting them on a local directory at C://... on one workstation? Based on Michael Ginsborg's close reading of the LexisNexis Electronic Publications Master Agreement in his LexisNexis eShift or eShaft? analysis, my web server hosting suggestion sounds like a violation of the Company's Master Agreement, even if the PDFs were hosted on an internal closed intranet. My bad. As Michael correctly observed, the basis of my post was the Lexis eShift Notice tech processing staff were finding in the shipments of the last print periodical issues their law libraries would receive.

Well, I doubt anyone has commenced following my April 8th suggestion at this time. Why? Because attentive serials check-in staff are still catching the ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION notice. Apparently the list of known affected titles appears to be growing. What point is there in taking any systematic in-house problem-solving action until institutional subscribers know how extensive the Lexis eShift's impact to their libraries will be unless, of course, one's collection development policy has become to cancel the periodicals.

It is clear that once again Lexis is in customer service damage control mode; the scramble is on. Apparently nothing much was learned from the "free" eBook substitution for CDs that commenced in November of 2012, nothing that is except maybe someone in Dayton or New York City mentioned "we're going to have to answer to CRIV again". And indeed, Lexis will. But despite CRIVs very best efforts I seriously doubt the forthcoming periodical e-migration response will be any more enlightening than the Company's response to CRIV's first go-around with the eBook substitution.

CRIV can only go so far. Based on the recently approved Vendor Relations Policy by AALL's Executive Board, CRIV cannot do much more than ask Lexis to please consult with and please provide reasonable and detailed advance notice when Lexis or any other vendor for that matter considers or decides to change a title's format (from one print to another print format, from one electronic to another electronic format or from one print to an electronic format).

No doubt Thomson Reuters is enjoying this second round of WTF-ing from law libraries about Lexis. Usually Thomson Reuters is at the center of these sorts of kerfuffles with their invoice-paying institutional buyers. Joined by Lexis now, we highlight typical WEXIS responses in the form of three rhetorical questions.

1. What if a vendor's response to an on-going format change is to merely indicate that there are a couple of hundred of titles which are candidates for being changed?
2. What if a vendor's response is to tell the institutional buying community to contact their individual rep?
3. What if a vendor's response is to claim that advance notice is being provided to customers by way of an updated list of titles hosted on their eCommerce site?

Acceptable? Anyone with any print manufacturing experience knows that a vendor does not wake up one morning and says "OK, we are executing and distributing this title's format change today". Scheduling is involved; in some instances print manufacturing scheduling extends out 12-18 months in advance. In some, such as periodicals, perhaps only a couple of months. Anyone with any electronic manufacturing experience also knows that a fair amount of coding work is involved to test and then implement a format change from one eFormat to another eFormat before production is executed.

Why should buyers law libraries with standing orders, subscriptions and/or multi-year "price-discounted" contracts have to contact their reps to find out if and/or when a title will been shifted to a new print or electronic format? Do the reps know? If so, why not just inform customers of the schedule in advance. But publish that information by what means? By way of a growing, updated list of affected titles on the vendor's eCommerce site -- why should customers have to check a vendor's website daily, weekly, monthly?

Dear WEXIS

Based on past practice, it appears to be too much to ask you to consult with institutional buyers about possible format changes, etc. However, it is the 21st century. Since you can and you do flood our email in-boxes with advertising, I'm thinking you can figure out a way to send emails in advance of format changes to invoice-paying law librarians.

Just a thought...

Of course, each and every invoice-paying law librarian is responsible for dealing with vendor issues. Voluntary timely contributions to the law library community by individual librarians such as Michael's LexisNexis eShift or eShaft? can be very helpful. Collective action by AALL, no matter how well-meaning, is too constrained by official AALL policies, procedures and practices to contribute much more than calling attention to the consequences of vendor decisions with the hope that the vendor will provide some useful information.

Should we just assume that WEXIS has little knowledge about internal library operations? If that's the case, then CRIV performs a valuable function. However, I think WEXIS knows what they are doing. Our user populations, not law libraries, are their customers.

My hunch is that if at some vendor meeting, someone mentions "we're going to have to answer to CRIV again," a vendor senior executive's response would be "so what." Under AALL's Guide to Fair Business Practices for Legal Publishers (2012), "so what" is an acceptable response to law libraries. [JH]

Ginsborg's Lexis eShift or eShaft? Analysis

Because several readers asked, Michael Ginsborg's four-part series of LLB blog posts, Lexis eShift or eShaft? (April 15-18, 2013), can be downloaded in one PDF for easy reference here. Permission requested and obtained from the author. Reuse permission for downloading this eShifted format version also provided.

While I suggested in this April 8, 2013 post that one apply AALL's draft The Code of Best Practices for Licensing Electronic Resources to the LexisNexis periodicals migration, Michael correctly, in my opinion, applied AALL's Principles For Licensing Electronic Resources in his analysis. This official AALL document was in effect at the time Lexis started eShift-ing periodical subscriptions without either consulting with or provide advance notice to institutional subscribers. AALL's Principles For Licensing Electronic Resources also is relevant because the document is incorporated by reference in the current edition of AALL's Guide to Fair Business Practices for Legal Publishers (2012), another official AALL document cited in Michael's analysis.

In the April 2013 AALL eNewsletter issue (date stamped Thursday, April 18, 2013) rank-and-file members were informed The Code of Best Practices for Licensing Electronic Resources was approved by the E-Board during its April 4-5, 2013 Spring Meeting, apparently as submitted. It will supercede AALL's Principles For Licensing Electronic Resources. The Code "will soon be available on AALLNET."

Since I have no idea whether AALL's Principles For Licensing Electronic Resources will be archived online for future reference, you may download a copy I scraped from AALLNET here. Michael did not ask for this, but I think it is needed to understand his detailed analysis just in case the superceded Principles are AALLNET vaporized and/or the AALLNET URLs in his posts become dead links when the The Code of Best Practices for Licensing Electronic Resources goes live. [JH]

Advocating for eLending: ALA reports on latest meetings with trade publishers

ALA President Maureen Sullivan reported on the latest series of meetings the library association conducted with trade publishers in New York: From her blog post

In terms of library ebook lending, a number of ideas arose. In several meetings we discussed how libraries might be able to provide new ways to enable access (and sales) for publisher titles without compromising our values. One such existing mechanism is the deployment of the buy-it-now button—when a library user placed on the waiting list for an ebook is given the option to purchase the title—with some of the proceeds from purchases that patrons opt to make benefiting the library. Based on the work of ALA’s Digital Content and Libraries Working Group, other business model components were discussed and some interest was expressed by publishers.

Another common theme was how libraries typically provide ebook access through intermediaries. We all recognize that these intermediaries provide valuable services. Still, both publishers and libraries experience significant challenges in how library ebooks are made available and these challenges merit increased attention. Perhaps the most notable issue for libraries is ownership and control of library user data; the ability of intermediaries to collect and analyze such data; and the subsequent use of the data for marketing purposes.

For much more, see Report from Manhattan: Librarians Navigating the Digital Revolution (E-content, April 16, 2013). [JH]

An Update on Developments About the Lexis eShift for Periodical Subscriptions

Since initial receipts of the "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" Lexis eShift Notices (republished here) in early April (March?, earlier?) of this year by institutional subscribers, additional information has become available. Most of the information comes from a series of email exchanges between Caroline Walters, Collection Development Librarian for U.S. and the Materials Budget, Harvard Law Library, and Lexis representatives.

From the context of the exchanges, Lexis understood that the Company's responses to Caroline's questions would be made available to a wider audience. The provided information was republished inside AALL's walled garden of web communications on the Consumer Advocacy Caucus community message board by Betsy McKenzie, Director of the Moakley Law Library and Professor of Law, Suffolk University Law School and Caucus Chair. Highly recommended.

Without intending to speak for either Caroline or Betsy, I view this, my opinion and only my opinion, as:

1. Caroline was not representing either the Caucus specifically or AALL generally. All she has been attempting to do is acquire information from Lexis about the periodical eShift to perform her day job duties for Harvard Law School Library; and
2. While Betsy is Caucus Chair, I believe she was simply posting those exchanges on the Consumer Advocacy Caucus web community message board for FYI purposes about a pressing work-related issue. Furthermore some Caucus web community messages were posted by other law library representatives to help answer day job related questions that had been asked.

Of course, one also may view the Caucus message board activity as an appropriate means for gathering concrete information so that the Caucus can make recommendations to the Executive Board.

BTW, all AALL members -- law library and vendor representatives -- may join and contribute to Consumer Advocacy Caucus web community message board. Again, only speaking for myself, I believe that anything which advances prompt responses to and understanding of time-sensitive issues involving institutional buyers and their vendors can be productive. I may be wrong but I believe buyer and vendor representatives can post to the Consumer Advocacy Caucus web community without being members of the Caucus.

End note. Last week CRIV conducted a conference call with Lexis representatives "to further discuss the change in format to eBooks/eNewsletters and invoicing." According to this April 19, 2013 CRIV Blog post, "LexisNexis will be posting an official response to the questions covered during this call, and we will post the response to the CRIV Blog as well as sending it out through our listserv liaisons." See also this CRIV Blog post dated April 19, 2013, What is the LexisNexis eShift? ("Note: Our serials coordinator alerted me to the following letter included with our copy of Benedict’s Maritime Bulletin.") (Includes the text of the "ACTION REQUIRED TO CONTINUE YOUR SUBSCRIPTION" eShift Notice). [JH]

Wait, oh yes, wait a minute Mister Postman: How's securing commitments to the Guide to Fair Business Practices for Legal Publishers from AALL's "vendor partners" going?

No doubt we will eventually learn what happened at the Spring Meeting of AALL's Executive Board. What the heck, it has only been one full workweek since the meeting concluded.

The Executive Board's Vendor Liasion had an item on the meeting's agenda, approval of her draft AALL Vendor Relations Policy. See Tab 21 of the Spring Board Meeting Book behind AALL's walled garden. (A draft styled "final" is available here.) From the Board Book's Agenda Item Summary:

The AALL Vendor Liaison is charged, among other things, with developing appropriate information policies to guide the Association's work on issues related to publishers and the legal information industry. The proposed Vendor Relations Policy provides a framework for AALL in its vendor relations activities and guidance to the AALL Vendor Liaison, the Committee on Relations with Information Vendors, and other AALL entities that interact with legal publishers and monitor issues relating to legal publishing.

(Emphasis added.)

Count the number of times the word "encourages", meaning "please", is used in Section IV, "Issues relating to publisher practices and services" of the draft AALL Vendor Relations Policy. For example:

D. AALL encourages legal publishers to consult with law library customers on significant potential publication changes, e.g. format, frequency, etc.

Meaning "vendor partners please consult with AALL invoice-paying institutional buyers on significant potential publication changes, e.g. format, frequency, etc." instead of unilaterally executing this (Lexis), this (Lexis), and this (Thomson Reuters).

Based on past "vendor partners" practices, think that is really going to happen? Was this toothless policy approved by the E-Board? I guess we will just have to "wait a minute, wait a minute, oh yeah" to find out.

One item not on the Spring Meeting agenda ... was a report by AALL's hired help on the progress made to secure commitments from instead of merely encouraging AALL's "vendor partners" to abide by the Guide to Fair Business Practices for Legal Publishers (2012). One would hope some E-Board member wanted to know "what's up with that because it has been over three months?" considering all the AALL money spent on the 2011 Vendor Colloquium. Certainly in their day jobs, E-Board members hold and/or are held accountable for completing tasks.

My bad, wishful thinking. Or perhaps there is buried somewhere in the E-Board's administrative code of conduct an Ignorance is Bliss Rule. Rank-and-file members whose day jobs involve dealing with vendors, however, could use a status report:

Which vendors have been contacted about committing to the Fair Business Practices Guide? (Who, when, how?)

Which vendors have made an official response?

Did the vendor commit to all, some, or none of the Guide's fair business practices and if only to parts, which parts?

If the vendor refused to commit to all or some of the Guide, what reasons did the vendor state?

When will this information be published?

Wait, oh yes, wait a minute, Mister Postman.

Each and every vendor's written reply would be handy to have when invoice-paying law librarians represented by AALL have a problem with a specific vendor that has or has not committed in whole or part to what right now is nothing more than AALL's endorsed business practices. But the audience of public interest is much wider than law librarians. The guidelines also target business conducted with "other consumers of legal information" according to the Vendor Liasion's December 2012 Update. The complete text of all vendor replies should be published on AALLNET outside its walled garden of web communications.

Quoting from Not Yet There: On achieving the "highest priority" in the Action Plan that "emerged from" the 2011 Vendor Colloquium (LLB, Dec. 10, 2012).

Yup, it's time for this music video. [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]

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]

Library Copyright Alliance Releases Issue Brief on Kirtsaeng

The Library Copyright Alliance has issued a thoughtful Issue Brief on the impact of the recent Supreme Court decision in Kurtsaeng v. Wiley.  Here’s the information from the press release:

In "The Impact of the Supreme Court’s Decision in Kirtsaeng v. Wiley on Libraries," Jonathan Band explains the recent copyright decision on the scope of the "first sale" doctrine, its context, and its likely consequences for libraries in the US. In short, the Supreme Court's opinion is a landmark victory that strengthens the legal foundation of library lending, and the Court's extensive reliance on the Library Copyright Alliance's amicus brief shows the importance of library engagement in policy debates. Continued vigilance will be necessary, Band explains, as rights holders disappointed with the Court's majority opinion could go to Congress for a change to the law. Jonathan Band is counsel to the Library Copyright Alliance (LCA), whose members are the American Library Association, the Association of College and Research Libraries, and the Association of Research Libraries. Band practices law at policybandwidth.com.

Brand posits at one point that publishers will lobby Congress to “clarify” the copyright laws to restore the balance in their favor.  While the Court gave weight to the amicus briefs submitted on behalf of the library associations, it’s my opinion that Congress tends to favor business interests over libraries.  Let’s hope the arguments from library associations will be strong enough when Congress considers the issue.  [MG]

Opposing CISPA This Week

A coalition of Internet advocacy organizations and individuals launched a week of action to lobby against the Cyber Intelligence Sharing and Protection Act (CISPA), HR 624, yesterday. Participating organizations listed by EFF include ALA and ARL. For details on how to participate, see Stop CISPA: A Week of Action to Oppose Broad Cybersecurity Legislation. See also EFF's analysis at CISPA, the Privacy-Invading Cybersecurity Spying Bill, is Back in Congress.

While not currently listed as participating in the week-long campaign by EFF -- the list is being "updated on a daily basis throughout the week" -- AALL has stated its concerns about CISPA in a formal statement here. [JH]

Supreme Court Action: Kirtsaeng Case Holds First Sale Doctrine Applies to Foreign Made Books

The Supreme Court decided Kirtsaeng v. John Wiley & Sons, Inc. (11-697) this morning.  The case concerned the application of the first sale doctrine to books and other materials manufactured outside of the United States.  Supap Kirtsaeng imported Wiley’s textbooks manufactured in Thailand and resold them in the United States.  Wiley sold the same textbook at a much higher price.  Wiley asserted rights under §602(a) and §106 of the Copyright Act which gave exclusive rights to the publisher and allowed controls on the importation of those foreign made goods.  Kirtsaeng argued that the first sale doctrine codified in §109 altered those rights.  The District Court would not let him assert the first sale doctrine as a defense as it concluded the doctrine did not apply to foreign made goods.  The Second Circuit affirmed that decision. 

The Supreme Court reversed, holding that the doctrine does indeed apply to foreign manufactured goods.  The Court examined words of the statute, “lawfully made under this title,” and concluded that there was no geographic limitation on the application of the statute.  Other courts have adopted the geographical limitations on the application of the Copyright Act, though the Court said a common sense reading of the statutory text belies that: 

In our view, §109(a)’s language, its context, and the common-law history of the “first sale” doctrine, taken together, favor a non-geographical interpretation. We also doubt that Congress would have intended to create the practical copyright-related harms with which a geographical interpretation would threaten ordinary scholarly, artistic, commercial, and consumer activities. See Part II– D, infra. We consequently conclude that Kirtsaeng’s nongeographical reading is the better reading of the Act. 

The Court examined the dictionary meanings of the words, the history of the Copyright Act, the historical development of the first sale doctrine and concluded that Congress did not have geography in mind when it wrote the present version of the Act. 

The Court specifically mentions the possibility that libraries may be restricted in loaning books that were manufactured outside of the United States, per the American Libraries Association brief.  Other amici raised similar issues for foreign-made goods with microchips containing copyrighted code embedded in them.  The Court noted that while there haven’t been harms to consumers so far, that could change if the decision went in favor of Wiley.  Justice Breyer delivered the opinion of the Court which was joined by Chief Justice Roberts and Justices Thomas, Alito, Sotomayor, and Kagan.  Justice Ginsburg dissented and was joined by Justices Kennedy and Scalia.  Justice Scalia declined to join Parts III and V-B-1 of the dissent ostensibly because those parts referred to legislative history. 

I’ll have more to say about this decision in the next day.  For further information, read my LLB posts The Deeper Implications Of The Pending Kirtsaeng Case and The Kirtsaeng Oral Argument.  [MG]

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]

Reminder: Registration for AALL's eBook Webinar Due by March 21

Sue Polanka is presenting an AALL sponsored webinar on eBooks. Note well that registration is due by Thursday, March 21st.

E-books: Opportunities, Obstacles, and Trends
Date: Wednesday, March, 27, 2013
Time: 11 A.M. (Central Time)
Fee: AALL Members - $30; Non-AALL Members - $60;
Site Registration (one per physical location) $150
Register by March 21
 
E-books are a moving target, presenting many opportunities – and obstacles. Wherever you are in the e-books evolution, do you know how to move forward? Are there best practices for the future? Please join e-books expert Sue Polanka, a 2011 Library Journal Mover and Shaker, award-winning e-books blogger, and columnist for a discussion on the growth, challenges, and trends of the e-book industry. Topics to be discussed include licensing and managing content across locations, business models and their impact on access and budgets, locally hosting versus proprietary platforms, and managing content in a mobile environment. Get a jump start (and a leap ahead) into the ever-changing world of e-books.
 
Program participants will:
 
• Explore different business models and degrees of accessibility
• Examine budgeting for collection building versus access-only materials
• Compare locally hosted content with content on proprietary platforms
• Determine criteria for evaluating e-book vendors
• Gain tips and ideas for moving forward with your own e-book offerings

[JH]

March 10-16: Gearing Up for Sunshine Week 2013?

I think we law librarians know what Sunshine Week is. Promoting open government and freedom of information by way of this annual week-long series of events is one way to advocate for the public's right to know. AALL will again co-sponsor a Sunshine Week webcast with OpentheGovernment.org. It will to be held on the morning of Friday, March 15. For details, see Save the Date! Sunshine Week 2013 (Washington Blawg) and/or the March issue of Washington E-Bulletin.

In addition to AALL, the co-sponsors of OpentheGovernment's March 15th event include the American Library Association, American Society of News Editors, Association of Research Libraries, Center for Effective Government, League of Women Voters, National Freedom of Information Coalition, Project on Government Oversight, Reporters Committee for Freedom of the Press, the Special Libraries Association, and Sunlight Foundation. For more information, see Register Now: OpenTheGovernment.org’s Sunshine Week Event on March 15. Here's the event's agenda.

According to Sunshine Week's About page, Bloomberg LP and the John S. and James L. Knight Foundation are providing financial support for Sunshine Week 2013. Did someone forget to ask Thomson Reuters? The American Society of News Editors FOI co-chairs Andrew Alexander and Tim Franklin discuss Sunshine Week 2013 in the below video. [JH]

IFLA's Principles for Library eLending

Earlier this month IFLA's Governing Board endorsed Principles for Library eLending as a complementary policy statement to IFLA's database-focused Licensing Principles (2001). "It is evident that the library distribution of downloadable trade eBooks differs fundamentally from the licensing of digital databases."

From the Background statement:

The differences for library acquisition of the two types of digital content include:

• The 2001 Principles assume “a willing information provider and a willing purchaser of information access” and advocate for standard license terms and conditions in a number of areas. As has been well documented, the large multi-national trade publishers take very different approaches to selling eBooks to libraries including withholding content and will not engage in collective discussions about terms and conditions due to concerns over anti-competition legislation.
• With eBooks a layer of complexity is added with interoperability restrictions for end users dictated by eReading device manufacturers/distributors (Amazon, Apple…) and interfaces and use restrictions dictated by content sellers/resellers (OverDrive, Amazon…). Imposed restrictions often do not integrate seamlessly with other library discovery services.
• While licenses for aggregated eBook collections are negotiated, when made available to libraries eBooks are often licensed on a title by title basis from publishers or through resellers and terms and conditions are non-negotiable.
• Publishers of trade eBooks most often have regional geographic rights which may constrain their ability to contractually agree to international interlibrary loan to regions where they do not hold rights.
• Consortia licensing of eBooks is actively discouraged by trade publishers and resellers.

From the Preamble:

The IFLA Principles for eLending is based on the assumption that it is necessary for libraries and publishers/authors to negotiate a range of reasonable terms and conditions for the licensing of eBooks to libraries which allows them to fulfil their mission of guaranteeing access to knowledge and information for their communities. Successful negotiations will require solutions which do not unduly jeopardize the publisher’s and author’s financial viability. It is not acceptable that a publisher or author can restrict a library's ability to purchase/license otherwise commercially available eBooks for the library collection. The implementation of a library's collection development policy has to be in the library's control, and not in the control of publishers and authors.

(Emphasis added.)

Whoa! I think that means a library's business plan trumps any vendor's business plan.

On Feb. 8, 2013, IFLA launched a new set of resources relating to eBooks and libraries. Recommended as a starting point for law libraries hell bent on not being a lap dog --- meaning by prioritizing their institution's business plan higher than our association's so-called vendor partners business plans.

End note. AALL has some sort of involvement with IFLA, right? Emphasis on "some sort." For example, see this 2011-12 Annual Report about AALL's participation in IFLA affairs authored by Sally Holterhoff, AALL Representative 2011-2014 ("Although the two main categories of IFLA membership are Associations and Institutions, AALL participates through appointment of an individual to serve as its representative to IFLA through a Personal Affiliate membership.") [JH]

I got tenure after my book was published by Edwin Mellen Press

If you hunt around the Edwin Mellen Press website you might find author testimonials like one I did during my review of the publisher's catalog of philosophy titles on Feb. 9-10, 2013. (Results of my buy-not-buy decision here.) The gist from [prof's name and link to testimonial omitted] was "I got tenure after my book was published by Edwin Mellen Press".

I don't know if the author only submitted his book to Edwin Mellen Press or only submitted his work to Edwin Mellen Press after it have been rejected by one or more publishers. But consider the message. Remember it was a testimonial by an author about an employment-related result of event after his book being was published that was selected for display by Edwin Mellen Press on its website. (Oops, see how easy it is to draw conclusions.) Place that in the context of Dale Askey's critique of the Press and the titles it publishes.

It is not unusual for publishing houses to solicit submissions for possible publication. Is this one of the ways Edwin Mellen Press goes about acquiring titles for its catalog of offerings? Was the intended audience authors desperately to publish, not perish?

Book testimonials, typically authored by someone who may have read the book are just marketing fodder. Testimonials by authors in this context are a bit odd but they too are nothing more than marketing fodder. No reader should conclude I am stating or implying that the Edwin Mellen Press publication of this testimonial signals in any way, shape or form that listing on a CV a title "published by Edwin Mellen Press" has any value whatsoever.  

Many factors go into a tenure review committee's decision making matrix. Being published by Edwin Mellen Press may or may not have been a factor considered by the tenure review committee in this instance. The author's testimonial does not state a causal link; it simply asserts a fact that can be verified. I'm assuming it is true. I'm omitting the poor prof's identity because legal counsel for the Δ may want to ask him one hellva lot of questions. They might include but certainly may not be limited to the following:

• Why did you submit your publication to Edwin Mellen Press?;
• What questions were asked by Edwin Mellen Press during its acquisitions screening process?;
• Was your testimonial statement voluntary or a condition of being published?;
• Was the testimonial displayed on the publisher's website full and complete?
• Who were the members of your tenure review committee?

Oops!

Statements of support for Askey. In addition to the previously reported ARL-CARL Joint Statement in Support of Dale Askey and McMaster University, see

AAUP Issues Statement on Edwin Mellen Lawsuit;

CLA Supports Dale Askey in Libel Suit Defence;

ACRL Board of Directors Statement on Edwin Mellen Press v. Dale Askey; and

ALA President Maureen Sullivan responds to Edwin Mellen Press lawsuit (text republished below).

“As president of the American Library Association, I share the deep concern expressed by the Association of College and Research Libraries, the Association of Research Libraries and the Canadian Library Association among many others in deploring the actions of the Edwin Mellen Press in filing a libel suit against Dale Askey, currently a librarian at McMaster University, for expressions of his professional opinion on his personal blog not associated with either Kansas State University or McMaster University.
 
“This action strikes at a core responsibility of all librarians as information professionals to provide considered, critical advice to the reading public regardless of the type of library in which they are employed.
 
“In addition, it has the potential to significantly poison the good relationships enjoyed by the library and publishing communities. I call upon the Press to reconsider its actions and drop this assault on intellectual and academic freedom.”
 
"The American Library Association is the oldest and largest library association in the world, with 58,000 members. Its mission is to promote the highest quality library and information services and public access to information."

In the event the Canadian Center for Science and Education does more than just threaten to sue Jeffrey Beall, associate professor and scholarly initiatives librarian at the University of Colorado Denver, for being included in Beall’s List: Potential, possible, or probable predatory scholarly open-access publishers based on his Criteria for Determining Predatory Open-Access Publishers (2nd ed., Dec. 1, 2012), my hunch is statements in his support will be forthcoming.

For previous coverage and commentary on LLB, see:

• Academic Librarian Sued For Dissing Publisher In A Blog Post (Feb. 7, 2013)
• The Curious Case of Edwin Mellen Press (Feb. 11, 2013)
• Another Publisher Threatens Suit Against A Librarian For Blog Comments (Feb. 18, 2013)
• When All Else Fails, Sue or Threaten to Take to Court the Publishing Industry Critic (Feb. 19, 2013)

[JH]