Thursday Threads: OCLC Moves to Dismiss SkyOCLC, UCLA Sued For Streaming, Paving Cow Paths, Origins of #

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This week’s Thursday Threads highlights includes two legal cases that bear watching. The first is the case of SkyRiver/Innovative Interfaces versus OCLC (covered on DLTJ previously); now that the case has been moved to OCLC’s home court (the federal district court located in Columbus, OH), it is asking for the case to be dismissed. The second legal cases is the UCLA streaming media case, with issues ranging from fair use to licensing terms to DMCA violations; if this one goes to trial we might get some new case law surrounding the intersection of copyright and libraries. The remaining two pieces are a look at how publishers (and librarians) should avoid paving cow-paths and the origins of the hash symbol.

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OCLC Files Motion to Dismiss SkyRiver/Innovative Lawsuit

This case arises because Plaintiffs believe they are entitled to free access to OCLC’s proprietary WordCat service, a comprehensive database of library records, developed over the past forty years. While framed as an antitrust case, Plaintiffs’ Complaint alleges only that OCLC has engaged in the types of appropriate behaviors expected of competitors: compete vigorously on price (or, at worst, price a product too high), work with libraries to develop new products, introduce innovative new products that threaten Plaintiffs’ profitability, and sell less expensive subscriptions than à la carte services. In short, even taking the Complaint’s allegations as true, the antitrust laws encourage OCLC’s behavior: vigorous competition against a company offering less expensive, but inferior products, is perfectly lawful. It is axiomatic that “[t]he antitrust laws are for the benefit of competition, not competitors.” Under these laws, OCLC is not obligated to give away its investment, to subsidize Plaintiffs’ prices by lowering its own, or to refrain from seeking to keep its subscriber libraries. Because Plaintiffs fail to plausibly plead that OCLC has done anything other than appropriately behave as any competitor would, and thus Plaintiffs have not suffered any antitrust injury and lack antitrust standing, the threshold requirements to proceed with an antitrust case have not been met, and this Court should dismiss the Complaint. Legal citations removed

OCLC’s Motion deliberately mischaracterizes the allegations in SkyRiver’s Complaint for OCLC’s own public relations purposes. Our legal team will respond in due course. Our position remains as it was in July when we filed suit – that OCLC has engaged in business practices which ultimately will be found to be illegal.

The goal of our lawsuit is to create a level playing field for competitors in the library technology marketplace—opening the doors to competition will lead to greater innovation and technological advancement. We look forward to proving our case in court.

So goes the latest round of legal maneuvering with a motion to dismiss filed by OCLC and a public statement by Leslie Straus of SkyRiver. Karen Coyle has two posts that dissects the OCLC motion. The timeline now in play is that SkyRiver/Innovative has until January 14th to file a reply to the motion to dismiss and OCLC has until January 31st to reply to that reply. There is also a “preliminary pretrail conference” set for January 4th that will likely take place by phone. The place to go for a comprehensive view of what’s happening with the case is Marshall Breeding’s SkyRiver versus OCLC page on Library Technology Reports. If you want more of the legal nitty-gritty (and don’t have a PACER account), look at the copy of the case docket on the Internet Archive RECAP service. (It doesn’t look like Justia is getting documents out of PACER.)

UCLA Sued Over Streaming of Educational Videos

This case involves the Defendants’ assertion that UCLA, one of the largest educational providers in the United States, can take copy-protected DVDs, produced and/or distributed by [Ambrose Video Publishing] and other AIME members, stream these DVDs via the Internet or the UCLA intranet to faculty and students enrolled in their courses in derogation of existing licenses and established copyright law.

The Association for Information and Media Equipment (AIME) followed through on its threat to sue the University of California at Los Angeles over the latter’s streaming of copyrighted videos through the university’s course management system. UCLA argued that since the course websites are limited to registered students that converting the videos to streaming is equivalent to showing them in class. That wasn’t good enough for AIME and co-plaintiff Ambrose Video Publishing (AVP), and they announced [PDF] that the lawsuit had been filed in a California federal district court. A copy of the complain is on the AIME website [PDF], and some ancillary material is in the Internet Archive RECAP copy of the case docket.

This case should be interesting because UCLA is claiming (according to the complaint filed by AIME) to rely on a couple of exemptions in copyright law: the public performance exemption for “face-to-face” teaching (17 U.S.C §110(1)), fair use (17 U.S.C. §107), and the public performance exemption for certain digital distance learning uses (17 U.S.C §110(2)). AIME/AVP is also claiming that UCLA is violating the provisions of AVP’s DVD license. It isn’t clear from the complaint whether this was a “click-through” license (taking effect by the act of ordering videos from the website) or an actual signed license between AVP and UCLA. Throw into the mix that AIME/AVP claim that UCLA violates the illegal-to-bypass-digital-rights-managment provisions of the Digital Millennium Copyright Act, and the outcome of this case — if it indeed does go to trial — one to watch.

Publishers, don’t pave that cow path

What we realized was that the market and the industry are shifting so quickly that trying to focus on the product too much will get you into the “death wobbles,” as we call them in Australia. In traditional publishing we tend to “concrete the cow path” — if the cow is going from the paddock to the waterhole this way, let’s concrete it so the cow goes faster. Then the cow decides there’s actually another way that’s quicker, and you realize that you’ve concreted the cow path for no reason whatsoever. Our instinct in publishing is to say: “What is your new pathway? I’ll concrete that one.”

The lesson is that you don’t want to concrete your cow paths. It is all about how you do things. You need to remain incredibly flexible. You need to intuitively understand your industry and your customer. Focusing on how you do things rather than focusing on exactly what it is that you’re doing is something we learned over the last few years.

As a profession, are librarians paving cow-paths? This metaphor early in an interview article with Gus Balbontin of Lonely Planet resonated with me. I’m also studying how software developers and operations staff can work together in a concept called “Continuous Delivery” — the notion that software in development should always be production-ready. If we can move so nimbly as to not “pave a cow-path” with software release schedules measured in months or years, we will likely be able to better respond to changes in the environment and user expectations.

How the # became the sign of our times

The term octothorpe was coined by engineers at Bell Laboratories in the early 1960s, who wanted a name for one of two non-number function symbols on the first touch-tone keypads (the other was the *, which they called a sextile). It didn’t catch on, and the # key became famous as an ineffectual way of interacting with the robots who work at your bank.

The Guardian newspaper in the U.K. has this historical treatment of that symbol we call the cross-hatch, the hash, the pound sign, and the octothorpe. Just like how the at-sign (‘@’) became important in e-mail addresses and later as the signal for an account name, the ‘#’ symbol has taken on a new life as the ‘hashtag’ that brings together topics on Twitter. This is a fun look at the origins of the symbol.

(This post was updated on 17-May-2011.)