A plea to scholars

Dear scholars,

Please pay attention to where you place your scholarship.   Are you aware of the cost of some journal subscriptions?  One example, of many, is the Journal of Law & Society.  The Stanford Law Library used to get this print subscription with discounted rate and paid $161 for the current 2013 print subscription. We just received word from Hein (who handles the subscription for us) that the publisher will begin to charge us the full price with an additional payment of $851.00.

What made me think of this was the receipt yesterday of a new publication from my hero Carl Malamud.  Carl has become quite the pamphleteer and his most recent is On Crime and Access to Knowledge.    I urge you all to read it.

In the pamphlet, Carl tells the story of the late Aaron Swartz and discusses JSTOR, PACER, and broader information access issues such as Carl’s heroic efforts to make public safety documents, such as building codes, available to the public.

But on the issue of what Aaron did with JSTOR, Carl makes this important point:

. . . One must remember that JSTOR is a messenger, an intermediary, and if there is fault here, that fault is ultimately the fault of the scholars who wrote those articles and allowed them to be locked up.  It was a corruption of scholarship when the academy handed over copyright to knowledge so that it could be rationed in order to extract rents.

Please think twice before you place a piece of your scholarship with a particular journal.  Find out what it costs to subscribe to the journal; find out what databases include its text (your librarian can help with this); ask the journal if you can retain ownership and publication rights.  And ask yourself:  Do you really want your scholarship tightly locked up behind expensive pay walls?

 

French Law 2012-287: Database of Digitized 20th Century Books

Law 2012-287 was published in the Official Journal of France on March 2, 2012. The law, which amended France’s Intellectual Property Code, proposes building a free, public database of digitized books that were published in the 20th Century and are no longer in commercial distribution. The Bibliothèque national de France (BNF) would be in charge of creating and administering the database.

Publishers and rights holders will have 6 months to challenge inclusion of a book in the database. It also appears that after raising a challenge, publishers have three years to demonstrate a market for the book, or that they have created their own digitized version.

I did not see a specific appropriation of funds in the bill, so it is unclear to me how the BNF will finance the project.

Reaction on French law librarian mailing lists and blogs has been positive, but muted. Wait and see seems to be the prevailing sentiment.

Whether this bill leads to a free database or not, let’s hope that it spurs debate in France, Europe, and across the Atlantic, about the role of digitized books in society.

Law 2012-287 relative à l’exploitation numérique des livres indisponibles du XXe siècle.
http://www.legifrance.gouv.fr/jopdf/common/jo_pdf.jsp?numJO=0&dateJO=20120302&numTexte=1&pageDebut=03986&pageFin=03988

Full-text of the bill and links to legislative history materials are available at
http://www.assemblee-nationale.fr/13/ta/ta0865.asp

Some authors’ groups have already criticized the bill for ignoring copyright law. For example, see the petition circulated by writer Yal Ayerdhal:
http://www.petitionpublique.fr/?pi=P2012N21047

Additional commentary on the bill from the Rue89 blog
http://www.rue89.com/rue89-culture/2012/03/03/numerisation-des-livres-quon-nedite-plus-qui-y-gagne-229855

Selling Others’ Briefs, Illustrated

To better illustrate some of the points made by Paul in his posting Selling others’ Briefs, Bryan L. Jarrett (our former student and now an associate at Jones Day) has given us permission to post two of the charts he created for his paper “Vending Appellate Briefs.”  (To recap, Bryan’s paper surveyed the practices of sixteen state jurisdictions and DC — the ten largest ABA jurisdictions (by membership size) and seven jurisdictions that did not supply copies of appellate briefs to commercial vendors.  The data was gathered in 2010.)

The first table (“Table I: The Ten Largest Jurisdictions”) displays five questions (for the jurisdictions of NY, CA, TX, FL, IL, DC, MA, OH, PA and NJ): do these jurisdictions provide appellate briefs online; do they have an arrangement with a vendor (Westlaw, Lexis) for the distribution of briefs; do these jurisdictions send appellate briefs directly to vendors; is the exchange of briefs quid pro quo; and have any attorneys objected.

The second table (“Table II: Jurisdictions that Do Not Supply Their Briefs to Vendors”) focuses on seven jurisdictions (NV, NH, NM, OK, VT, UT, and WY) and addresses the same questions as in Table I.

Selling others’ briefs

Following up on George’s post “A pair of lawyers . . . sue West and LexisNexis for reproducing their court filings,” I took a second look at a directed research paper a student did for me a couple of years ago on the subject of vending appellate briefs.  The student surveyed 17 jurisdictions — 10 that provide briefs to vendors and 7 that do not.

One of the interesting take-aways from the student’s paper is the wide variety in means by which vendors have obtained briefs.  Some states have made various arrangements with vendors; others refuse to do so.  For a very few states there is a distinct quid pro quo. Past practices will change, though, as the vendors are increasingly just pulling from posted copies; unless a court rules against such a practice it will only accelerate.

California and Pennsylvania, of the surveyed jurisdictions, both have quid pro quo arrangements.  For example, in California, the state Supreme Court used to send copies of the briefs to certain public law libraries but stopped the practice when it made a deal with Court Records Service (later acquired by West Publishing) whereby the court receives microfiche copies in return for providing the briefs.

Massachusetts has what seems like an odd arrangement whereby briefs are scanned once at the Clerk’s Office, then sent to Westlaw, where they are scanned again and later returned.

To write the paper the student called librarians, court clerks, reporters of decisions, and the vendors.  None of the surveyed court staff members reported any attorney dissatisfaction with the practice of providing briefs to the vendors.  And in one state, the Reporter of Decisions speculated that attorneys actually liked “the free advertising.”  And many clerks were surprised that this has become an issue at all since the documents are public records.

Yes, they are public records but that doesn’t mean they are in the public domain.  Yet who wins if a court rules that Westlaw and LexisNexis are infringing authors’ copyright?  My student thinks that the attorney authors are really the only winners (if they receive royalties) and most of them have already received substantial compensation for writing these briefs and all other players (the courts, the public) are losers.   I hope that in the spirit of pro bono most attorneys will continue to make their appellate briefs available to all the world and not press ownership claims (with perhaps some sort of opt-out provision for the rare instances when, for privacy or other sensitive concerns, certain briefs should not be published).   It would also be a better world if LexisNexis and Westlaw could also take responsible pro bono actions here, as suggested by Ed Connor and not profit from the work product of those in the private sector.

Here’s the cite to my student’s paper:  Bryan Jarrett, Vending Appellate Briefs: The practice, its future, and implications if found illegal.   Submitted October 30, 2010.

Abstract:

This paper analyzes the collection and sale of appellate briefs.  It presents the findings of a survey of seventeen jurisdictions.  The paper discusses how Westlaw and LexisNexis access the briefs, whether they have structured mutually beneficial agreements with the courts that provide the briefs, whether attorneys commonly object to the sale of their briefs, the likely future of the industry, and the potential policy implications of a successful legal challenge to the industry’s practices.

Michael Hart, Father of Project Gutenberg

Today’s New York Times includes the lengthy obituary: “Michael Hart, a Pioneer of E-Books, Dies at 64.”

The obit tells the story of the fascinating history of Project Gutenberg, which was born when Mr. Hart typed out the Declaration of Independence on July 4, 1971 and made it freely downloadable from Arpanet.   From that beginning, the project has grown to include over 30,000 books.

The obituary also discusses various copyright issues and Mr. Hart’s connection with then Stanford law professor Lawrence Lessig when Prof. Lessig met for lunch with Mr. Hart to see if he might serve as lead plaintiff in a constitutional challenge to the Copyright Term Extension Act.  Mr. Hart, after pouring sugar on his pizza, told Prof. Lessig that he saw the ligitation as a chance to “challenge the entire social and economic system of the United States.”    According to the obit. Prof. Lessig was looking for someone a little “less visionary” and enlisted Eric Eldred for the cause, which resulted in the 2003 Supreme Court decision Eldred v. Ashcroft.

After Google Book Search: Rebooting the Digital Library

“After Google Book Search: Rebooting the Digital Library” 
University of Chicago Law & Economics, Olin Working Paper No. 559

RANDAL C. PICKER, University of Chicago – Law School

The rejection of the Google Book Search settlement means that we are at a point of rebooting how we design our digital library future. There were many criticisms of GBS and the settlement but perhaps chief among those was the risk that approval of the settlement would have locked in a single approach to digital libraries. Google would have received unique access to the so-called orphan works and that would have provided it what may have been a decisive advantage against digital library competitors, both private and public. As we move forward on the orphan works, we need to do so with two principles in mind. First, we need to enable broad competing uses of the orphan works while, to the greatest extent possible, respecting the rights of the orphan works holders. Second, we should not repeat the mistake of the GBS settlement by somehow tilting the table in favor of digital library monopoly, either public or private.

We should want to foster a rich digital library ecosystem. GBS makes clear that we can have large-scale private digital libraries. That is an important development and one that we should seek to enable. If we create use rights for copyrighted works for digital libraries, we should be sure to make those privileges available to both public digital libraries and private digital libraries such as GBS and its successors. Our existing statutory safe harbors for libraries favor noncommercial libraries and archives. The emergence of GBS suggests that that is too narrow a conception of what libraries can be in the digital age and we need a statutory scheme that supports that.

Source: LSN: University of Chicago Law School, Law & Economics Research Paper Series Vol. 13 No. 4, 06/27/2011

 

Save the Tweets: Library Acquisition of Online Materials

The latest issue of AIPLA Quarterly Journal (Volume 39, Issue Number 2, Spring 2011) just landed upon my desk, and at page 269 I found this article calling for “digital acquisition rights”:

Save the Tweets: Library Acquisition of Online Materials, by Jodie C. Graham

Its abstract from the AIPLA webpage:

As the Internet becomes an increasingly pervasive communications technology in society, public discussions and other born-digital documents of social and political importance frequently exist solely on various websites.  To fulfill their missions of preserving public knowledge, libraries seek to acquire and make accessible web documents to scholars, students, and other library patrons.  However, section 108 of the Copyright Act, which previously provided sufficient protection from liability for libraries’ acquisition and reproduction activities, does not adequately map onto the technological realities of acquiring digital documents over the Internet.  As a result, libraries must accept the risk of copyright infringement liability or forgo preserving historically important online documents.  This Note proposes a set of amendments that would update section 108 to extend libraries’ current limited protections from copyright liability to the acquisition, preservation, and making available of online documents.​

Accessing and Reusing Copyright Government Records

Accessing and Reusing Copyright Government Records

John Gilchrist

10 Law and Justice Journal 213 (2010)

Full text available at:

http://www.law.qut.edu.au/files/4.Access_and_Reuse_GILCHRIST_3.pdf

Abstract

The common policy objectives in modern liberal democracies of promoting open and accountable government and of preserving national culture and heritage are reflected in the provision of access to, and the preservation of unpublished and published works held by government. A wide spectrum of social enquiry is in whole or in part dependent on these government preserved holdings.

The policy objectives in Australia are manifested in two ways. One is in government archival practices and laws. The other is in the Australian Copyright Act 1968 facilitating access to, and the preservation of, unpublished and published works held by archives and libraries. While preservation of these works and the costs associated with it are in themselves a recognition of the public interest in accessing works held by archives and libraries, existing laws and practices facilitating access should be reviewed in light of technological changes in way we access, create and communicate works and in light of further moves towards openness in government.

This article outlines present archival practices and laws in Australia, and the scope of Copyright Act provisions,  before turning to reform. The focus will be on the Australian federal sphere.

Pushing Libraries and Archives to the Edge of the Law

“Pushing Libraries and Archives to the Edge of the Law”

BOBBY GLUSHKO, University of Michigan School of Information, University of California, Berkeley – School of Law

The ability to digitize hard copies, the proliferation of born digital content, and access to online distribution holds the promise of improved access to archival materials. Despite these advances, libraries and archives are increasingly hindered in providing this access by the legal issues surrounding their collections.  However, this unfortunate problem can be resolved with a mixture of good policy, careful action, clarification of uncertain legal implications, and a reliance on the protections afforded to libraries and archives by the law.

This paper explores the legal issues faced by archivists and librarians in digitizing and distributing their materials.  Through a discussion of current archiving practices, this paper walks readers though the relevant sections of the copyright act, as well as other implicated areas of the law.  By showing potential sites of legal conflict, engaging difficulties with seeking permission to use library and archival content, and suggesting areas where archivists can push the boundaries of their rights more aggressively, this paper provides a glimpse of the legal landscape surrounding digital archiving, and offers suggestions on how to successfully navigate it.  It is my sincere hope that this effort can empower librarians and archivists to make full use of their collections, to assert the full scope of their rights under the law, and to become advocates helping to shape the national discussion over the future of digital collections.

 

Source:  LSN Intellectual Property: Copyright Law eJournal Vol. 1 No. 11, 12/15/2010

WIPO Lex

UN Pulse reports that the World Intellectual Property Organization has formally released WIPO  Lex, a portal of IP legislation and treaties searchable by country and subject.

http://www.wipo.int/wipolex/en/

From the WIPO description:

“WIPO Lex is a one-stop search facility for national laws and treaties on intellectual property (IP) of WIPO, WTO and UN Members. It also features related information which elaborates, analyzes and interprets these laws and treaties. It provides streamlined access to reference material of key importance for optimal information on the global IP System.”