Welcome to the new year! Threads this week include a brief analysis of the legal problems in store if SOPA and PROTECT-IP become law, what an analysis of the problems with Best Buy might teach libraries, and why open source licensing of clinical tools is important.

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A Look at the Legal Aspects of SOPA and PROTECT-IP

Two bills now pending in Congress—the PROTECT IP Act of 2011 (Protect IP) in the Senate and the Stop Online Piracy Act (SOPA) in the House—represent the latest legislative attempts to address a serious global problem: large-scale online copyright and trademark infringement. Although the bills differ in certain respects, they share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.

- Don’t Break the Internet, by Mark Lemley, David S. Levine, and David G. Post, Stanford Law Review

In case you missed the dramatic events in the last days of 2011, SOPA and PROTECT-IP Act, just before Congress recessed for the year lawmakers concerned with the provisions of SOPA offered and debated enough amendments to the draft legislation that they effectively stalled passage through the House Judiciary Committee. At the end of the last committee meeting, the sponsors of SOPA acknowledged that there were significant issues and seemed to agree that they needed a confidential briefing from the Department of Homeland Security on the possible effects on DNSSEC — a highly technical but very important consideration. (Why it needs to be confidential when DNSSEC is an open specification stretches my imagination, but there you go…)

This paper by Lemley, Levine and Post describes the legal implications of enforcing the key provisions of SOPA and PROTECT-IP as drafted. The authors say “the bills represent an unprecedented, legally sanctioned assault on the Internet’s critical technical infrastructure” and describe how it is a bad prescient and why it won’t work in the end. In more positive news, there is an effort underway to draft legislation that would accomplish much of what SOPA and PROTECT-IP say they want to do without many of the downsides.

Why Best Buy is Going out of Business…Gradually

Electronics retailer Best Buy is headed for the exits. I can’t say when exactly, but my guess is that it’s only a matter of time, maybe a few more years.

- Why Best Buy is Going out of Business…Gradually, by Larry Downes, Forbes

The authors tell a story about how as a Best Buy customer he was approached by a salesperson wanting to sell him an on-demand video package of some sort, and that reminded me just a little bit from my academic experience of trying to push bibliographic instruction on students rather than solving the problem they had at hand. The article goes on to describe how online retailers like Amazon are more in tune with customer needs and demands. I couldn’t help but wonder if our library processes and procedures and polices are more like Best Buy or more like Amazon. From what I hear at my consortial perspective we are trending towards Amazon, but are we going to get there fast enough?

By the way, I can highly recommend a recent 51 minute audio interview with Robert Stephens, founder of the Geek Squad and now Chief Technology Officer of Best Buy (after Best Buy purchased and integrated the Geek Squad electronics service chain early last decade. It is a fascinating view of how customer service must trump all other concerns, and how efficiently executing customer service is the true path to survival. There are some lessons in there for libraries as well.

Open Source Licensing Defuses Copyright Law’s Threat to Medicine

Enforcing copyright law could potentially interfere with patient care, stifle innovation and discourage research, but using open source licensing instead can prevent the problem, according to a physician – who practices both at the University of California, San Francisco and the San Francisco VA Medical Center – and a legal scholar at the UC Hastings College of Law.

- Open Source Licensing Defuses Copyright Law’s Threat to Medicine, News service of the University of California, San Francisco

Here’s something to think about. What if new medical advances where suppressed because the diagnostic instruments used were protected by copyright. The doctor in the above article goes on to say that clinical tools tend to resemble one another “not because their creators are unoriginal, but because the tools are based on the same research and the same science.” That is a legal grey area where clinics decide to err on the side of caution and not use something that could be protected by copyright. It sort of reminds me about the unsettled law surrounding orphan works — just enough grey to stifle innovation.

Another “by the way”: I can also recommend a 16 minute recording of Karen Sandler speaking at the recent O’Reilly Media Open Source conference on the need to publish the source code of embedded medical devices under an open source license so the programs could be independently inspected. It, too, comes by way of the IT Conversations podcast. Two podcast mentions in one DLTJ Thursday Threads? What can I say…I listened to a lot of podcasts over the December break.

This week’s big news is hard to miss — we have a decision by the judge evaluating the settlement agreement in the Google Book Search lawsuit. This is probably the first of many follow-ups in DLTJ as this case keeps taking interesting twists and turns. Also of note this week is Cornell Library’s statement that it will no longer sign contracts that include non-disclosure agreements. Lastly is a pointer to a 10 minute video of Hans Rosling’s TED talk on machines leading to increased literacy.

Feel free to send this to others you think might be interested in the topics. If you find these threads interesting and useful, you might want to add the Thursday Threads RSS Feed to your feed reader or subscribe to e-mail delivery using the form to the right. If you would like a more raw and immediate version of these types of stories, watch my FriendFeed stream (or subscribe to its feed in your feed reader). Comments and tips, as always, are welcome.

Settlement Rejected in the Google Books Search case

In the end, I conclude that the ASA [Amended Settlement Agreement]is not fair, adequate, and reasonable. As the United States [Department of Justice] and other objectors have noted, may of the concerns raised in the objections would be ameliorated if the ASA were converted from an “opt-out” settlement to an “opt-in” settlement. I urge the parties to consider revising the ASA accordingly. The motion for final approval of the ASA is denied, without prejudice to renewal in the event the parties negotiate a revised settlement agreement. The motion for an award of attorneys’ fees and costs is denied, without prejudice. The Court will hold a status conference on 4/25/2011, at 4:30 p.m. in Courtroom 11A of the Daniel Patrick Moynihan Courthouse.

- Judge Denny Chin in The Authors Guild et. al. v. Google

Thirteen months after the last formal hearing, Judge Denny Chin issued the opinion of the New York Southern District Court: rejection of the settlement agreement between Google and a large class of authors and publishers. The path forward is not yet clear, but there seem to be three possibilities: 1) the parties file another amended agreement that effectively ignores orphan works (copyright holds would have to opt-into the settlement); 2) the parties appeal the rejection decision; or 3) the parties move back to litigating the original 2005 case (as amended in 2008). The first path — filling another amended settlement agreement — seems to be the most likely at the moment. In their response to the court’s ruling, the Association of American Publishers said, “[the court decision] provides clear guidance to all parties as to what modifications are necessary for its approval. The publisher plaintiffs are prepared to enter into a narrower Settlement along those lines to take advantage of its groundbreaking opportunities. We hope the other parties will do so as well.” Authors Guild President Scott Turow said, “we’ll be studying Judge Chin’s decision and plan on talking to the publishers and Google with the hope that we can arrive at a settlement within the court’s parameters that makes sense for all parties.” Google was pretty non-committal: “This is clearly disappointing, but we’ll review the court’s decision and consider our options.”

In his analysis of the opinion, New York Law School professor James Grimmelmann said, “If I had to bet, I would guess that we’ll end up with a revised settlement drafted to meet Judge Chin’s specification, which will be approved relatively quickly (at least compared to this last go-round).” Professor Grimmelmann goes on to predict the outlines of what a resubmitted settlement agreement might look like:

• Google is allowed to continue scanning and searching in exchange for cash payments on the order of (but perhaps not exactly) the $60 in the present settlement, and it’s required to provide an opt-out. Very few people have argued that this form of settlement would be beyond the court’s power. The precise explanation of how this would be distinguishable from the present settlement, although quite feasible, will require some nuance and subtlety.
• The Display Uses — Consumer Purchase, Institutional Subscription, etc. — are either gone entirely ore are offered on an opt-in basis. The difference between these two possibilities is not large, since, in effect, Google already offers an opt-in through the Partner Program.
• The libraries receiving digital copies are released from liability but are even more tightly restricted in the uses they can make than under the present settlement.
• The fates of other facets of the settlement such as the Research Corpus, will be hammered out in the negotiations.

Notable news and opinion on library related aspects of this decision come from HathiTrust (highly recommended), Stanford University, Eric Hellman (on what could be next for the Book Rights Registry), and Karen Coyle (list of open questions).

James Grimmelmann continues to be a key person to read as he, along with the law school students he supervises at The Public Index, dissect and make accessible the court filings and surrounding legal opinions. The Public Index also maintains a listing of notable news articles and opinions. The commentary is also happening in Twitter, which you can read in raw form by searching Twitter for the #GBS hashtag or by reading the daily aggregation/summation paper.li #GBS hashtag newspaper.

Cornell University Library’s Position on Nondisclosure Clauses in Licenses

To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret. All new and renewed licenses submitted with nondisclosure clauses will not be signed but henceforth will be referred to the Associate University Librarian for Scholarly Resources and Special Collections for further negotiation.

- Cornell University Libraries Website

Cornell’s decision mirrors a resolution adopted by the Association of Research Libraries in 2009 and a statement by the International Coalition of Library Consortia in 2004. A more complete analysis of Cornell’s efforts is in the Chronicle of Higher Education (behind the Chronicle’s paywall) and Library Journal.

Hans Rosling and the magic washing machine

What was the greatest invention of the industrial revolution? Hans Rosling makes the case for the washing machine. With newly designed graphics from Gapminder, Rosling shows us the magic that pops up when economic growth and electricity turn a boring wash day into an intellectual day of reading.

- Description of Hans Rosling’s December 2010 TEDWomen talk

Hans Rosling makes another stunning and insightful 10-minute presentation using key statistics about population growth and energy usage. In this one he makes a link between the use of machines to replace manual labor and the advancement of literacy with the saved time. [Discovered in an NPR Planet Money blog entry.]

The text was modified to update a link from http://publishers.org/main/PressCenter/Archicves/2011_March/GoogleBooksSettlementStatement.htm to http://publishers.org/press/29/ on May 17th, 2011.

It is an all e-books edition of DLTJ Thursday Threads this week. The biggest news was the announcement of the policy change by HarperCollins for ebooks distributed through OverDrive. Beyond that, though, was an announcement of a new sharing model and program through the Internet Archive. Lastly is a slidecast recording of a presentation by David Lewis on the future of library collections.

Before continuing, a quick apology and explanation. E-mail readers received a pair of extra Thursday Threads messages and RSS subscribers got a dump of unrelated posts; I’m sorry. The cause was an update of this blog’s WordPress software to version 3.1 and a conflict (maybe this one) with the SimpleTags plugin. I believe all is well, but I won’t know until this post is published.

Feel free to send this to others you think might be interested in the topics. If you find these threads interesting and useful, you might want to add the Thursday Threads RSS Feed to your feed reader or subscribe to e-mail delivery using the form to the right. If you would like a more raw and immediate version of these types of stories, watch my FriendFeed stream (or subscribe to its feed in your feed reader). Comments and tips, as always, are welcome.

HarperCollins Puts 26 Loan Cap on Ebook Circulations

In the first significant revision to lending terms for ebook circulation, HarperCollins has announced that new titles licensed from library ebook vendors will be able to circulate only 26 times before the license expires.

Mention of the new terms was first made in a letter from OverDrive CEO Steve Potash to customers yesterday. He wrote [emphasis in original]:

[W]e have been required to accept and accommodate new terms for eBook lending as established by certain publishers. Next week, OverDrive will communicate a licensing change from a publisher that, while still operating under the one-copy/one-user model, will include a checkout limit for each eBook licensed. Under this publisher’s requirement, for every new eBook licensed, the library (and the OverDrive platform) will make the eBook available to one customer at a time until the total number of permitted checkouts is reached.

Though the letter leaves the publisher unnamed, HarperCollins confirmed today to [Library Journal] that it is the publisher referred to.

In an odd one-two punch, this past week saw a disturbance in the status quo of e-book licensing. The first punch came in the letter from OverDrive [PDF] (part of which is quoted in the Library Journal article excerpted above). The second in that Library Journal article when we learned that the publisher pushing for the change of terms is HarperCollins. Since then it has been the source of a great deal of discussion by librarians and a few authors, much of it in the form of tweets with the hash-tag “#hcod” (short for HarperCollinsOverDrive). Damage control comes in the form of open letters from OverDrive and HarperCollins. There has been a call for a boycott. Bobbi Newman, one of the first to jump on the story, is maintaining a list of news articles and commentary.

As you can see, much has already been said about the issue, and since collection development is not my specialty, you probably shouldn’t look to me for an informed opinion. (If pressed, I will suggest that it is a perfectly reasonable collection development policy to not buy access to material with terms that are not in the library’s and patron’s best interest.) Instead, there is so much oddness in this new policy that I find I can’t put myself in HarperCollins’ shoes. First, using OverDrive as a proxy for announcing this policy change seems wrong (and, frankly, unfair to OverDrive). Then as word spreads, you don’t make your own announcement, but rather talk to a reporter from Library Journal. Then as news spreads through the day, you send a single tweet. In fact, you don’t really publicly respond until five days after the twitter universe and biblio-blogosphere have been talking about it. And it is pretty much a non-engaging, public relations response. (You do get credit, though, for allowing open comments on your blog post. But some of that credit is taken back because you aren’t using a company branded blog. Really? A typepad.com blog? One of the tenants of most information literacy courses I’ve seen is to look for the source of the information, and it requires extra effort to take this blog seriously because it isn’t in the harpercollins.com domain space.)

If I were to guess, this seems like a trial balloon that was badly floated. I certainly can’t fault HarperCollins for trying something new in the ebook licensing world, but this one has fallen flat.

Internet Archive and Library Partners Develop Joint Collection of 80,000+ eBooks To Extend Traditional In-Library Lending Model

Today [February 22, 2011], a group of libraries led by the Internet Archive announced a new, cooperative 80,000+ eBook lending collection of mostly 20th century books on OpenLibrary.org, a site where it’s already possible to read over 1 million eBooks without restriction. During a library visit, patrons with an OpenLibrary.org account can borrow any of these lendable eBooks using laptops, reading devices or library computers. This new twist on the traditional lending model could increase eBook use and revenue for publishers. …

Any OpenLibrary.org account holder can borrow up to 5 eBooks at a time, for up to 2 weeks. Books can only be borrowed by one person at a time. People can choose to borrow either an in-browser version (viewed using the Internet Archive’s BookReader web application), or a PDF or ePub version, managed by the free Adobe Digital Editions software. …

Publishers selling their eBooks to participating libraries include Cursor and OR Books. Books purchased will be lent to readers as well as being digitally preserved for the long-term. This continues the traditional relationship and services offered by publishers and libraries.

This press release from the Internet Archive largely went unnoticed on the eve of the #hcod onslaught. It was covered in the Chronicle of Higher Education’s Wired Campus blog and in Library Journal. The latter has a few more helpful details: “IA founder Brewster Kahle and director Peter Brantley also told LJ that small independent publishers Cursor, OR Books, and Smashwords will donate ebooks license-free to the Open Library for lending to all Open Library members. With this venture, IA hopes to establish a “first-sale precedent” for e-lending, according to Brantley.” One must be from one of the participating libraries to check out books. My experience with most Internet Archive efforts is that the initial announcement is very subtle and not picked up widely, then slowly grows to something substantial. I expect this project will follow much the same path and will have a noticeable imprint on the profession in a few years.

Slidecast of David Lewis’ “Collections Futures” Talk

• Context
  • The Big Shift
  • Interlude with Clay Shirky
  • A Bit of Disruptive Innovation Theory
• Collections in “A Strategy for Academic Libraries in the First Quarter of the 21st Century”
• What Will Be Easy and What Will Be Hard

So far in DLTJ Thursday Threads I’ve intentionally avoided pointing to items inside this blog — preferring to link to events, resources, and conversations elsewhere. I’m going to make sort-of-an-exception in this case because what I’m ultimately pointing to is not my work. It is a slidecast (recorded audio synchronized to slides) of David Lewis’ presentation at the 2010 Annual RLG Partnership Meeting. Starting with a foundation from John Hagel III, John Seely Brown and Lang Davison called the “Shift Index” [PDF], Clay Shirky’s “How Social Media Can Make History” TED Talk, and Clayton Christensen’s disruptive innovation theories, David walks through the possibilities for three strategic issues facing academic libraries: Complete the migration from print to electronic collections; Retire legacy print collections; and Migrate the focus of collections from purchasing materials to curating content. The slidecast is about 75 minutes long and well worth the time as a thought-provoking view of what libraries should be doing to survive the next few decades.

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.

If you find these threads interesting and useful, you might want to add the Thursday Threads RSS Feed to your feed reader or subscribe to e-mail delivery using the form to the right. If you would like a more raw and immediate version of these types of stories, watch my FriendFeed stream (or subscribe to its feed in your feed reader). Comments and tips, as always, are welcome.

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.

The text was modified to remove a link to http://www.aime.org/news.php?download=nG0kWaN9ozI3plMlCGp%3D&u=101215120000 on May 17th, 2011.

On Saturday morning of ALA Midwinter 2010, Dr. Jennifer Younger moderated a session on the progress of the OCLC Record Use Policy Council. The meeting started with an introduction to the reasons behind the creation of the Record Use Council, the charge of the Council from the board of trustees, and how the framing of the discussion of the policy is guided by the values and history of OCLC the cooperative. There wasn’t much new here for those that have been following the progress of the policy discussion, so I am skipping over it most of it with the exception of a few notable topics. After that, I’m focusing on the lengthy question and answer session that followed Dr. Younger’s background presentation.

Highlights of the Background Presentation

WorldCat itself is now made up of 170 million bibliographic records and 1.5 billion statements of holdings from libraries. A policy is needed to create a viable business plan for sustaining this resource.

What the policy will cover: rights and responsibilities of members that have created WorldCat — the rights of members to use elements of WorldCat and the shared responsibilities to the members of the cooperative that go along with the rights; identifying acceptable use by third parties; what are OCLC’s rights to use the records on behalf of the members; and a process for collective participation in reviewing and modifying the policy over time. It will also have a “rather robust” preamble that answers the question of why a policy is needed, what problem is the policy is trying to solve, and what it is about WorldCat that necessitates a policy.

An Aside: What’s In a Name — OCLC-the-membership and OCLC-the-stewards

The View from the Database Level

1. As a supply of bibliographic records.
2. The ability to represent library holdings — the collective collection of libraries and the capability to reveal what libraries have in places like Google Book Search.
3. Knowledge organization pieces: taking the shared contribution of libraries and makes something more from it using authority control, terminologies, the Dewey Decimal classification system, FRBR work sets, etc.

It was interesting to note a non-U.S. perspective that the council has heard regarding the value of WorldCat. While most North American libraries strongly value WorldCat as a supply of bibliographic records (copy cataloging), the national libraries outside of North America are joining because adding their records to WorldCat gives greater visibility to their holdings. So the second and third value propositions above carry more weight than the first, which is arguably the most valuable aspect for North American libraries.

The challenge the Council said it is facing is to put enough controls in place to protect the value and viability of WorldCat while allowing enough flexibility for members, non-members, and OCLC to experiment and derive new, valuable services. One of the questions the review council is grappling with is how can the Cooperative use “community norms” to ensure the responsibilities assigned to the members are followed so we govern ourselves.

In taking this database-wide view, the council has set aside issues of individual record ownership and copyright of data in records and focused on what is valuable about the collection of records as a whole to the membership. WorldCat as a whole collective is copyrighted. As explained in the follow-up discussion with members of the council, the intellectual property law surrounding WorldCat records extends across many juristictions, so the council chose to focus at the database level.

Third Parties

In licensing WorldCat data to others, OCLC-the-steward is looking for remuneration of some sort for OCLC-the-cooperative. If the business use by a non-member third party is one that will harm the value and viability of the WorldCat Network, then the policy council wants to see it governed in some way. Remuneration can be in monetary form, where that external party pays a fee for the data. Or it can be in a non-monetary form, such as the quid pro quo with the internet search engines that have WorldCat data and in return drive traffic back to local libraries through linkage on WorldCat.org. As Jay Jordan put it sucinctly, “I’ll do a contract with anyone that returns value to the cooperative. Oftentimes, that is not cash.” It was stated that there have been attempts to download the entire WorldCat database. In order to be able to legally stop that, there must be a policy in place that prohibits it.

WorldCat as Linked Data

Questions

1. In Jennifer’s introduction, she talked about not only the value of the bibliographic records but also the value of the holdings. Has the Council looked a differing policies for bibliographic information versus holdings?
2. The discussion of linked data was incomplete due to time constraints. Has there been a discussion about a differentiation of value for different types or views of data? Machine access version human-oriented access? Linked data of some portion of the bibliographic record? Is the representation of the benefit of the world in general being taken into account in drafting policy guidelines?

A controversy is starting to pick up in the business librarian community — primarily in the U.K. it would seem — regarding the licensing demands of Harvard Business Press (HBP) for the inclusion of Harvard Business Review articles in EBSCOhost. HBP content in EBSCOhost carries a publisher-specific rider that says use is limited to “private individual use” and explicitly bars the practice of putting “deep links” of articles from EBSCOhost (so called “persistent links“) into learning management systems. In my words, HBP is attempting to limit access to its content in EBSCOhost to those who find it through the serendipity of searching. And now HBP is going after schools that are using persistent linking, and this raises all sorts of troubling questions.

The only visible sign of the publisher-specific rider (that I can find) is text appended to the end of each article from Harvard Business Review in EBSCOhost (copied from a post by Paul Pival):

Harvard Business Review Notice of Use Restrictions, May 2009 Harvard Business Review and Harvard Business Publishing Newsletter content on EBSCOhost is licensed for the private individual use of authorized EBSCOhost users. It is not intended for use as assigned course material in academic institutions nor as corporate learning or training materials in businesses. Academic licensees may not use this content in electronic reserves, electronic course packs, persistent linking from syllabi or by any other means of incorporating the content into course resources. Business licensees may not host this content on learning management systems or use persistent linking or other means to incorporate the content into learning management systems. Harvard Business Publishing will be pleased to grant permission to make this content available through such means. For rates and permission, contact permissions@harvardbusiness.org.

It was Pival’s next statement, though, in that same post where he relays a conversation with a colleague at a different institution that raised my eyebrows (emphasis added):

He also mentioned that HBSP [Harvard Business School Publishing] had leaned on his school and when they decided not to pay, EBSCO turned off the ability for them to create PURLs for that publisher.

Huh? How does HBP know that deep links are being used in that way?

EBSCO Information Services Website Privacy Policy

Graphical representation of the HTTP Referer Header

So now that we know how it is probably happening, we can ask “Is there anything in EBSCO’s terms-of-use that permits them to share usage information with content suppliers?” The answer would seem to be “probably yes”. The place to look is the EBSCO privacy policy. Here is an extract from the policy dated December 26, 2006 (the current version as of the time of writing). The HTTP Referer header seems to fall in the category of “Non-Personal Identifying Information:

B. Collection of Non-Personal Identifying Information
We collect and use non-personal identifying information, including IP addresses and web server log files to track trends, administer the website, track user movement, and gather demographic information. We use this non-personal identifying information in the aggregate. We do not combine these types of non-personal identifying information with personal identifying information [a term defined earlier in the privacy policy; e.g. user's name, address]. We may also share aggregated demographic information with our business partners, sponsors, advertisers, and companies that control, are controlled by, or are under common control with EBSCO Information Services.

The HTTP referer information comes from the web server log files (it is a byproduct of running a web server), and HBP is probably considered a “business partner”, so HBP can make a request of EBSCO like “Give me all of the HTTP referer addresses that link to HBP articles, and the number of times each referer addresses is used.” It would be pretty simple then for HBP to determine which institutions were deep linking directly to Harvard Business Review articles.

EBSCO Publishing License Agreement (Terms of Use)

C. Licensee and Authorized Users agree to abide by the Copyright Act of 1976 as well as any contractual restrictions, copyright restrictions, or other restrictions provided by publishers and specified in the Databases. [...] Publishers may impose their own conditions of use applicable only to their content. Such conditions of use shall be displayed on the computer screen displays associated with such content. The Licensee shall take all reasonable precautions to limit the usage of the Databases(s) to those specifically authorized by this Agreement.

And the repercussions of violating the Terms of Use? They are spelled out in the “Termination” section:

A. In the event of a breach of any of its obligations under this Agreement, Licensee shall have the right to remedy the breach within thirty (30) days upon receipt of written notice from EBSCO. Within the period of such notice Licensee shall make every reasonable effort and document said effort to remedy such a breach and shall institute any reasonable procedures to prevent future occurrences of such breaches. If the Licensee fails to remedy such a breach within the period of thirty (30) days, EBSCO may (at its option) terminate this Agreement upon written notice to the Licensee.

B. If EBSCO becomes aware of a material breach of Licensee’s obligations under this Agreement or a breach by Licensee or Authorized Users of the rights of EBSCO or its licensors or an infringement on the rights of EBSCO or its licensors, then EBSCO will notify the Licensee immediately in writing and shall have the right to temporarily suspend the Licensee’s access to the Product(s). Licensee shall be given the opportunity to remedy the breach or infringement within thirty (30) days following receipt of written notice from EBSCO. Once the breach or infringement has been remedied or the offending activity halted, EBSCO shall reinstate access to the Databases. If the Licensee does not satisfactorily remedy the offending activity within thirty (30) days, EBSCO may terminate this Agreement upon written notice to the Licensee.

I haven’t seen mention of EBSCO going so far as to terminate access to all or part of EBSCOhost, but there are indications that EBSCO is disabling the deep links to HBP content. There are reports of HBP asking libraries to pay an additional fee to EBSCO for the ability to have deep linking for HBP content. By one account, a UK university might have to pay an additional £15,000 (about $25,000 at current conversion rates) to “create persistent links for use in teaching.”

Do We Have to Take It?

Screen capture of a record for a Harvard Business Review article on EBSCOhost

And what is EBSCO’s role in this? Isn’t a library’s contract with EBSCO, not Harvard Business Publishing? Is EBSCO earning more revenue from this HBP license requirement to enable deep linking to article content? If so, isn’t that just an incentive for EBSCO to do the same with other high-profile publishers?

I don’t have answers to these last questions, but I do get a very uncomfortable feeling.

Update

August 28, 2009: An opinion piece in Library Journal from Chris Flegg, Bodleian Business Librarian of the Saïd Business School at the University of Oxford (UK) goes into more depth, and includes Oxford’s response — not to pay and have deep linking turned off.

The text was modified to update a link from http://www.caul.edu.au/datasets/hbr2008course-use.pdf to http://replay.waybackmachine.org/20091003235023/http://www.caul.edu.au/datasets/hbr2008course-use.pdf on February 11th, 2011.

Footnotes

1. Yes, they know they misspelled the word “referrer”
2. This is probably the kind of business intelligence that EBSCO already collected about how its service is used. I doubt that the recording and processing of HTTP referer headers is something specific to HBP content.
3. In its “Academic Permission Form“, HBP says the cost of permission to reproduce and distribute articles is $3 per copy. In addition, high-quality hard copies can be purchased from HBP for $3.42 each in quantities of 10 or more.