April 24, 2013
Legal research is "fun, light, easy, and all with just a few simple swipes and taps."
Only if you believe Thomson Reuters' marketing videos for WestlawNext. I wonder if all the Company's "legal solutions" are so carefree. See Jason Wilson's Legal research should be hard, shouldn’t it?
Of course, online legal research is difficult, time-comsuming, and complex even for something as "simple" as finding the statutory definition of a term. See, for example, this Legal Solutions Blog post by Steve Hainlen, TR Reference Attorney and training team member, Tips for Finding a Definition on WestlawNext. (NB: while the post's title references WLN, the post's opening statement reads "Finding definitions in statutes can be tricky, but a well-crafted Westlaw search can make it much easier.")
For something more enlightening than the typical marketing nonsense about West Search, see Qiang Lu and Jack Conrad's Next Generation Legal Search - It's Already Here (VoxPopuLII, March 28, 2013 post). Having worked with Thomson Reuters R&D on the WestlawNext research team, one may want to excuse the authors' obligatory high praise for WLN. But, what the heck, there's nothing wrong with the authors being proud of their work. [JH]
April 23, 2013
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]
April 22, 2013
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:
- 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
- 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]
April 18, 2013
LexisNexis eShift or eShaft? Part Four In A Four-Part Series
Needed Guidance Left Unstated In AALL Consumer Policies
In Part 3, we considered LexisNexis’ (LN) license restrictions on a library’s eShifted titles. If your library has such titles, do these license restrictions strike you as reasonable for your library, especially if or as Lexis adds more print titles to the eShift program? Or are they sufficiently unmanageable to create at least the appearance of a “bait-and-switch” maneuver to sell multiple-use licenses through the LexisNexis Digital Library? Not surprisingly, LN advertises the Digital Library as “more efficient compared to each individual eBook user purchasing and managing his or her own digital content.” We might have preferred a higher bar for "efficiency." At any rate, LN disingenuously states, “you are welcome to consider other solutions” if your library can not pay for a Digital Library.
Under Principle 18 of AALL’s Principles For Licensing Electronic Resources (PLER), library licensees should not have “enforcement obligations” that impose an “unreasonable burden.” If a revised LexisNexis Master Agreement(LNMA) followed PLER Principles 13 and 14, it would mitigate unreasonable burdens of library compliance. At least library licensees would not be held liable for unauthorized uses if, by “reasonable and appropriate methods,” they notify users of the restrictions (Principle 13). And they would have opportunity to investigate and correct LNMA violations as circumstances warrant (Principle 14).
Notwithstanding availability of a Digital Library option, the LNMA also can be understood to violate PLER Principle 17, a recommendation to “allow for routine remote access to [library-]licensed electronic information resources.” Finally, the LNMA has no provision for use of alternative dispute resolution, in possible violation of PLER Principle 33.
CRIV may yet intervene, as it has a phone conference scheduled this week with LN. LN seems unlikely to lift any of the license restrictions for libraries. Otherwise, LN could have foreseen that our libraries would object to the consequences, and would not have offered such a restrictive license agreement to libraries in the first place. Worse still, CRIV may not have standing to intervene. Neither FBPG nor PLER offer specific guidance on one of the most important library issues of our time - the issue of how publishers transition print subscriptions of libraries to e-formats. Therefore, it is far from clear that these guidelines support (or undermine) my interpretation that LNMA violates them.
Indeed, with one important exception, both FBPG and PLER might reasonably be interpreted to apply in this instance to new purchases, and not to “e-migrating” subscriptions. None of FBPG’s “change-in-format” principles has bearing, except for Principle 3.1(e), on advance notice to customers. PLER appears to have straightforward application, but the appearance is deceptive, because library customers have an alternative. Indeed, with respect to the Digital Library, LNMA may generally satisfy FBPG and PLER. Nothing in either guideline speaks to the “bait-and-switch” maneuver that arguably is at issue.
At any rate, LexisNexis need not modify its Master Agreement and disclosures in any way to satisfy FBPG and (by extension) PLER. AALL recognizes that "the publisher is in the best position to fully implement the guidelines in a manner suitable to its business plan." (FBPG Introduction item 4). LexisNexis can claim that it has fully implemented the guidelines in a manner suitable to its business plan, especially if the company has a business plan to increase licensed-product market share among law libraries. The claim would not be specious.
AALL’s consumer policies depend for their effectiveness on a self-regulatory model of “publisher partnerships.” eShift represents the cusp of a sweeping change for law libraries from owners to licensees of publications. eShift tests the adequacy this model. While our Association’s guidelines remain essential as minimal standards, the partnership model does not adequately protect law libraries facing “e-migration” of their holdings.
Editor's Note: Prior posts in the LexisNexis eShift or eShaft? four-part series:
April 17, 2013
LexisNexis eShift or eShaft? Part Three In A Four-Part Series
Burdens of Licensing Compliance - Added Costs, But No Commensurate Benefits
Imagine that yours is a 108(a)(2) library with more than one of the eShifted newsletters. You can reasonably expect LexisNexis to add other print titles to the eShift program, perhaps even treatises, such as those now available for eBook purchase. But suppose as well that you do not request a multiple-user license for these subscriptions through the LexisNexis Digital Library - an option, oddly enough, not described in the eShift letter. Under the LexisNexis copyright policy, you can print (and route) a single copy of a newsletter title issue, but your Library will now bear the expense of preparing printouts for routing and shelving. (What if the printer jams, or runs out of paper, producing an incomplete single copy?)
So eShift incurs a cost for printing to route or shelve the designated newsletters, and other serial publication that LexisNexis may designate for eShift’s pdf format. If or when eShift starts to include treatise subscriptions, treatises will be available in an eShift format other than pdf.
Does the digital format confer any substantial benefits? No. It confers just three marginal benefits. First, a single user in a library may search the digital content of “archived” newsletters, but how often is that likely to happen, given the license restrictions? Second, according to its eShift letter, LexisNexis states that the eBook format will “increase the timeliness and currency of your newsletter.” By the time newsletters are published, the events they cover already tend to represent dated news. Faster distribution makes little or no difference to attorneys if routed to more than two. If at some point treatises join the eShift program, neither of these benefits will matter (to the extent available for specific treatises), and for similar reasons.
Finally, as LexisNexis advertises, users will be able to “highlight, make notes, print and bookmark” content. But library patrons can not print more than an “insubstantial portion” and can not save any highlighted language, except as needed to print insubstantial portions. As computers used must not be “borrowed or removed from the premises,” each single user could not save the highlights or bookmarks without at least distracting the next user. Thus the license restrictions make the advertised benefit practically unavailable to library licensees. Because the advertisement misleads, it can be understood to violate Principle 1.2 of AALL’s Fair Business Practices Guide (FBPG), on accurate marketing and communication.
The license would add the following burdens of compliance to current and future print titles targeted for eShift. As the restrictions effectively demonstrate, the license has been designed for single buyer-users, not libraries. You can download all of your library’s eShifted newsletter issues, or all of your other print eShift titles, on one computer. Or you can download each title on its own computer. Regardless, you must maintain “exclusive control” over the computer or computers used. If you use just one computer for all eShifted titles, only one patron at a time will have access to any of them. You must, for each computer used, ensure that no patron “transfers” content except to print “an insubstantial portion." You must ensure that copied content does not end up in emails or Word documents, even if you disconnect the device from a network. You must keep patrons from taking the computer used off “the premises”; you and your colleagues must maintain “exclusive control” over it. That condition applies no matter how many patrons might use the designated computer for eShifted title access, or whether you or your colleagues are available to exercise “exclusive control.” You must also have every patron “agree” to posted licensing restrictions - a requirement best met in writing. Of course, interlibrary loans are not allowed.
Tomorrow, in the last part of this series, I will consider how these restrictions can be interpreted to violate AALL’s consumer advocacy guidelines. But that interpretation remains open to question, so I will suggest how the guidelines fall short of the consumer protections our libraries need in the “e-migration” era.
Editor's Note: Prior posts in the LexisNexis eShift or eShaft? series:
April 16, 2013
LexisNexis eShift or eShaft? Part Two In A Four-Part Series
The LexisNexis Electronic Publications Master Agreement, Problems of Disclosure, and Restrictions on Library Licensees
eShift customers would not have learned about the LexisNexis Master Agreement (LNMA) from the “eShift letter,” the communication that the company sent them about the change. (You can find the letter in this post by Joe Hodnicki, who appears to have based his comments on the letter.) The letter's omission, of course, presents a problem: it can be understood to violate Fair Business Practice Guide (FBPG) Principle 2.2(h), or the recommendation that legal publishers disclose license restrictions in customer communications. It also can be understood to violate FBPG Principle 2.4. Under this principle, where legal publishers advertise or market products both online and in print, they should not limit material statements to either just the print or online formats. However, a material statement appears in the just eShift letter mailed to customers, and not also the eBooks website. It concerns an important statement about “reuse rights” of eShift subscribers to the new pdf formats.
Another problem concerns liability of a library licensee under LNMA for unlicensed uses of LN’s electronic publications. LNMA specifies a library licensee as any library “described in 17 U.S.C. 108 (a) (2)” - a category that typically applies to law firm, academic, and public law libraries. License restrictions resemble some that apply to CD products. (See, for example, terms and conditions for Matthew Bender CD-ROMs.)
Under LNMA Section 1.3, a library licensee must do more than post a required notice of restrictions on any computer providing access. A library licensee “shall require” patrons to agree to the terms of restriction. The library licensee must also “not allow” any patron to (1) remove the electronic publication “from the premises”; (2) have “remote access” to it, whether by telephone, Internet, “or other means”; and (3) copy any but an “insubstantial portion” of content for printouts used in legal research. Restrictions (1) and (3) do not apply to individual purchasers of electronic publications. Thus individual purchasers using an eBook reader can obviously take an LN electronic publication home. They may also include an “insubstantial” portion in work product (Section 1.1.3).
Moreover, a library licensee must maintain “exclusive control” over the affected eReader or other computer, and must ensure that only one user at a time can have access. Finally, rather than take reasonable corrective steps, the library licensee must notify LN of unauthorized uses and “cooperate fully” with LN in “any resulting legal action.” It is hard to know what meaningful rights library licensees could expect to retain or defend in a “resulting legal action.” LNMA has no provision for arbitration of disputes.
Library subscribers to eShifted titles will find that their subscriptions have become far more costly and only marginally more useful. Tomorrow, in Part 3, I will describe the burdens of compliance for library licensees that do not buy access to a LexisNexis Digital Library, and related, possible violations of AALL’s Principles For Licensing Electronic Resources.
Editor's Note: For Part 1 in this series, see Introduction - eShift and LexisNexis Licensing.
April 15, 2013
LexisNexis eShift or eShaft? Part One In A Four-Part Series
Introduction - eShift and LexisNexis Licensing
AALL members recently had questions about LexisNexis eBooks and the “eShift” from print-to-electronic subscriptions, a change that currently affects 20 print newsletters and 24 handbooks and manuals (here and here) on CDs. (See also the company’s “Migration Efforts” and related posts by Joe Hodnicki here and here.) As a result of eShift, print newsletter subscribers will have to use an eBook (pdf) format to continue the subscriptions; handbook/manual subscribers will have to do likewise. The eShift list of print and CD-ROM titles appears likely to grow, and at some point may include treatises, like those already available for purchase.
CRIV quite helpfully enlisted LexisNexis to respond to many of our questions. Of course, LexisNexis deserves credit for responding, and for providing helpful information at its eBook website, even if serious concerns remain over the eShift program. On April 12th, CRIV announced that it “has a phone conference scheduled with Lexis next week” about outstanding issues. In this series, I will focus on just the newsletters and all other eShift print candidates, as relatively few law libraries continue to buy titles on CD-ROM.
A paramount concern involves licensing. In its response, LexisNexis stated that “you may find answers to your questions in the terms and conditions (the “Electronic Publications Master Agreement”) related to eBooks (as well as CDs, DVDs, PDFs, flash drives or other offline publications distributed electronically by LN) located at http://lexisnexis.com/terms/bender/masteragreement/.” A LexisNexis representative has just confirmed that the "eshift titles are governed by any terms and conditions within the product itself, the Master Agreement ... referenced, and any contract terms that [the customer] may have entered into on purchase." What tentative conclusions can we reach about the Lexis Nexis Master Agreement (LNMA), if we consider the consequences of compliance for "eShifted" newsletters and other (future candidate) print titles, and if we rely on our association’s consumer policies - the Guide to Fair Business Practices (FBPG) and Principles For Licensing Electronic Resources (PLER)
Tomorrow, in Part 2 of this series, I will describe a problem of disclosure and the nature of LNMA restrictions. In Part 3, I will describe the burdens they impose on library licensees and possible violations of FBPG and PLER. In Part 4, I will suggest that AALLs consumer policies, while essential, still fall far short of needed consumer protections for our libraries, given dramatic changes of the kind eShift represents.
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.
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]
April 11, 2013
District of Columbia Makes Its Code Available for Bulk Download Under a Creative Commons License
As a quick follow-up to The District of Columbia Claims It Needs to Copyright Its Code to Protect Itself from Commercial Publishers (April 3, 2013), a digital version of the DC Code is now available under a Creative Commons license. From the announcement:
In the interest of allowing developers to more readily access and adapt the D.C. Official Code, we are providing a freely available copy of the Code. This copy of the Code is not an official copy and should not be relied upon for legal purposes. It is current only through December 11, 2012.
This copy of the Code is available for use under CC0
April 09, 2013
Scott Turow Responds To The Kurtsaeng Case And More
Scott Turow, author and president of the Authors Guild, wrote an op ed piece on the Kurtsaeng case in the New York Times last Sunday. Naturally, he’s appalled at the outcome, though that is really a minor part of his complaints. The bulk of the piece rails against Google, technology, piracy, and even libraries. I recommend the piece by Mike Masnick in Techdirt that takes Turow’s arguments apart paragraph by paragraph. I’ll only add a few thoughts here.
Turow says about libraries:
Even libraries and authors, usually allies, have grown less cozy. No one calls our public library system socialistic, though it involves free distribution of the goods authors produce, and even though in many Western nations, authors get a tiny fee when libraries lend their works. Authors happily accept our system, because libraries have nurtured them as writers and readers.
Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries.
Scott, did you consider for a moment that even when a publisher does “sell” e-books to libraries that it does so at exceptionally high prices and terms, along with harsh digital rights management that hamstring the distribution and end use of the copy? Why, I’d almost think you despair at the fact that library lending can’t be further restricted and monetized somehow.
And then there are the pirates, aided and abetted by the major search engines:
The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.
1998 you say? And 15 years later Congress still hasn’t corrected this situation? I’d almost get the impression that the pirates have a better lobbying effort than the Guild.
Google, which seems to have the better track record on pirate links get its hits. First there is the Google book scanning project in which the Guild soldiers on as a litigant, even when the publisher plaintiffs and others have settled. Then there is the HathiTrust, an outgrowth of the scanning project, which was forced to suspend its orphan works program because it had trouble identifying authors and titles. None of that, however, changes the underlying and more important fact that the District Court in the HathiTrust case found the wholesale scanning of library collections to produce an electronic index is fair use. The Courts are just not cooperating.
There are multiple points of view on how Internet availability of books, legal and otherwise, affects how authors exploit their works. Author Neil Gaiman said this:
You're not losing sales by getting stuff out there. When I do a big talk now on these kinds of subjects and people ask "What about the sales you are losing by having stuff floating out there?" I started asking the audience to raise their hands for one question -- Do you have a favorite author? And they say yes and I say good. What I want is for everybody who discovered their favorite author by being lent a book put up your hand. Then anybody who discovered their favorite author by walking into a book story and buying a book. And it's probably about 5-10%, if that, of the people who discovered their favorite author who is the person they buy everything of and they buy the hardbacks. And they treasure the fact they've got this author. Very few of them bought the book. They were lent it. They were given it. They did not pay for it. That's how they found their favorite author. And that's really all this is; it's people lending books.
I don’t think that Gaiman is encouraging piracy. He seems to have accepted it as a component of book discovery which conceivably may increase sales. Turow says his concern is with the mid-list authors who may lose sales more than an established author. I can appreciate that concern, though I believe that obscure authors would still be obscure if the Internet had not been created. In fact, I think they would be more obscure.
My opinion is to either change the law or change the business practices. The latter may be easier as it doesn’t require an act of Congress. Railing against the various court rulings doesn’t change anything. Oh, and lay off the libraries if you don’t mind. We follow the copyright laws even if some Internet sites do not. [MG]
Does WestlawNext Cost Almost Twice as Much as Classic Westlaw?
According to Emily Marcum's findings, the answer is "yes." Her article, The Quest for Client Savings in Online Research: WestlawNext v. Westlaw Classic, is now available from Legal Reference Services Quarterly. Here's the abstract:
The cost to the client of Westlaw versus WestlawNext was assessed using two research methodologies. One methodology reflected real-world questions over time across categories. The other methodology had artificially generated questions broken down by category and evenly numbered across platforms. In both experiments, WestlawNext cost the client roughly double the cost of Westlaw Classic. Simplified pricing plans were cheaper for primary law and expert materials but were more expensive for other categories.
Highly recommended. [JH]
April 08, 2013
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)
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?
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 email@example.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]
April 8, 2013 in Administration, Collection Development, Digital Collections, Electronic Resource, Information Technology, Library Associations, Products & Services, Publishing Industry | Permalink | Comments (1)
April 04, 2013
Who is the largest federal government contractor in the State of Minnesota?Yup, its the folks from the Land of 10,000 Invoices, Thomson Reuters. According to the March 11, 2013 issue of the NLJ (at page 30), West Publishing was awarded $8,337,000 for "legal publishing services." That was more than 50% of the $15.1 million awarded to all federal contractors in Minnesota. [JH]
Who Owns the Law: Private Ownership of Public Law and How to Stop ItAs a follow up to several recent LLB posts, the video of Fastcase CEO Ed Walters' presentation at last month's ReInvent Law Silicon Valley 2013 Conference is now available for viewing on the ReInvent Law Channel. Here's the direct link to Walters' Who Owns The Law: Private Ownership of Public Law, and How to Stop It. Highly recommended as are the other presentations available on the ReInvent Law Channel. [JH]
April 03, 2013
The District of Columbia Claims It Needs to Copyright Its Code to Protect Itself from Commercial Publishers
Here's an odd twist to the copyright argument from a government actor. Quoting from Luke Rosiak's Ignorance of D.C.’s copyrighted laws can be costly (Washington Times, March 31, 2013):
Vladlen David Zvenyach, who oversees codification for the city council, said in Washington’s case, Mr. Malamud has nothing to worry about.
“At one point, the publishers threatened states over the ownership of their own code. If Lexis is the one doing it and the state goes around and alters it, they could be sued by the publishers. Our copyright is intended to protect us against them, not protect them against the public,” he said. “I have no intention of going after him.”
What was going on here? Carl Malamud acquired, scanned, OCRed and uploaded for bulk redistribution the 20-plus print volume edition of the District of Columbia code published by Thomson Reuters under contract with the Code's copyright owner, the District of Columbia. While Malamud was not looking to be sued, Steve Schultze took this a step further: "I downloaded his [Malamud's] copies, printed one of the volumes, and took a picture inviting Thomson Reuters or the DC Council to sue me... ."
One would think the District of Columbia will not sue Schultze since it does not intend to sue Malamud. As for Thomson Reuters, well, two thoughts. First, Schultze's post, The District of Columbia Claims Copyright on the Law, (includes photo) was published on Freedom to Tinker, a blog hosted by Princeton's Center for Information Technology Policy. While Schultze may have printed out a portion of the code on his own initiative, I'm thinking the Center might be looking for or willing to take on a test case.
Second, I doubt Thomson Reuters gives a damn anymore. As this WestMart e-blurb states (last visited on April 3, 2013) the DC Official Code is published by Thomson Reuters under an exclusive contract with the District of Columbia and Thomson Reuters claims it is copyrighted. However, the title is currently out of stock. And it may remain out of stock because the District of Columbia is switching to LexisNexis, presumably under another exclusive contract.
Do note that when Thomson Reuters was the District of Columbia's exclusive publisher it was required to provide a "free access" Westlaw portal for the DC Code (also last visited on April 3, 2013). See Tom MacWright's The Code: Access vs. Ownership for a critique. Is something better in the works? In the context of Lexis replacing Thomson Reuters, Luke Rosiak reports in the above cited Washington Times article that "the city is working to make the full text available in more flexible formats, rather than locked behind mouse-clicks on WestLaw’s website."
Hum... . How? Using Lexis coded eText? Hosted by Lexis? Perhaps someone will make an open records request for the Lexis-DC contract.
Note well that Georgia claims copyright ownership of the Official Code of Georgia Annotated. Lexis, as the state's official publisher, is required to provide a very similar "free access" portal with the following terms and conditions of use:
GEORGIA CODE – FREE PUBLIC ACCESS
The Official Code of Georgia Annotated (O.C.G.A.) is copyrighted by the State of Georgia. By using this website, the user acknowledges the State's copyright interests in the O.C.G.A. Neither the O.C.G.A. nor any portions thereof shall be reproduced in any form without written permission from the Georgia Code Revision Commission, except for: (1) fair use under the copyright laws of the United States; or (2) those limited portions that are in the public domain (statute text and numbering).
Use of this website and the downloading or copying of any material there from shall be subject to the Terms and Conditions of LexisNexis®, which is the official publisher of the O.C.G.A. and maintains this website at its own expense to provide free public access to the law. It is not intended to replace professional legal consultation or advanced legal research tools. Please note that the latest print version of the O.C.G.A. is the authoritative version; and in case of any conflict between the materials on this website and the latest print version of the O.C.G.A., the print version shall control. To report errors regarding this website, please complete the publisher's Feedback Form.
Wouldn't a simple Creative Commons License be the better way to go about this? See Lobbying for More Than Just UELMA. At some point, I'm thinking even our major legal publishers, legal solutions providers, professional legal services (whatever) vendors might find this to be an attractive alternative to today's status quo.
End note. Does the sue-not sue outcome of the DC Code copyright matter remind you of something that happened in the past when Malamud scanned and uploaded for distribution primary legal resources "protected" by a state actor claiming copyright? It should. See Ed Walter's Tear Down This (Pay)Wall: The End of Private Copyright in Public Statutes July 15, 2011 VoxPopuLII post for details. [JH]
April 01, 2013
The Strange Case of Edwin Mellen Press Continues: Threatened with Lawsuit, Blog Takes Down Posts and Comment
Edwin Mellen Press is at it again. This time the publishing house threatened to sue the Society for Scholarly Publishing if it did not remove from its blog, The Scholarly Kitchen, two posts that a blog contributor wrote which reported and commented on the publishing house's lawsuits against Dale Askey and McMaster University as well as one published comment to one of the posts. Quoting from Edwin Mellen Press Threatens to Sue Society for Scholarly Publishing (The Chronicle's Wired Campus):
“The society and the blog are both volunteer-run efforts,” [The Scholarly Kitchen editor] Kent Anderson said, “and the feeling was that the best way to respond to the threats was to comply with them but also show people what the threats were.”
See The Scholarly Kitchen at Posts Removed Because We’ve Received Letters From Edwin Mellen Press’ Attorney (Includes texts of the two letters).
Hat tip to LJ InfoDocket's Gary Price for this development in the strange case of Edwin Mellen Press.
Update Oops! I forgot to mention the two Scholarly Kitchen posts targeted by Edwin Mellen Press were written by a librarian at the University of Utah.
For previous LLB posts that range from merely mentioning Edwin Mellen Press to reporting and commentary, 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)
- I got tenure after my book was published by Edwin Mellen Press (Feb. 25, 2013)
- An Update on the Curious Case of Edwin Mellen Press (March 5, 2013)
- The Curious Case of Edwin Mellen Press, Part 2: Drop the Second Lawsuit! (March 11, 2013)
March 27, 2013
Editorial Board of Journal of Library Administration Resigns in Protest
The entire editorial board of JLA has resigned because "the licensing terms in the Taylor & Francis author agreement are too restrictive and out-of-step with the expectations of authors in the LIS community."
After much discussion, the only alternative presented by Taylor & Francis tied a less restrictive license to a $2995 per article fee to be paid by the author. As you know, this is not a viable licensing option for authors from the LIS community who are generally not conducting research under large grants.
Thus, the Board came to the conclusion that it is not possible to produce a quality journal under the current licensing terms offered by Taylor & Francis and chose to collectively resign.
Quoting from an email received by and published in Brian Mathews' So I’m editing this journal issue and… (The Chronicle's The Ubiquitious Librarian blog). See also board member Chris Bourg's My short stint on the JLA Editorial Board. [JH]
March 19, 2013
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]