Occupy Copyright

I've been mulling this post over ever since Occupy Wall Street and its various local spinoffs got started, but I first wanted to make sure what I did end up saying was more thoughtful than opportunistic (also, Real Life came at me this month with a one-two punch that I'm still a bit staggered from and trying to process, but more about that when I'm at liberty to discuss it!). I'm pleased to see, however, that I'm not the first librarian to connect the dots between the causes fueling the OWS movement and the pressures currently facing libraries.

In the Library With a Lead Pipe gives a great rundown of those colleagues who are out there occupying librarianship in various clever and thought-provoking ways, from trying to overthrow the "Doing More With Less" mindset to demanding an occupation of scholarly literature and/or knowledge. I've already addressed the former issue here in my previous blog post, but today I'd like to take the latter point and drive it off the proverbial cliff by suggesting that we occupy nothing less than copyright itself.

How would we begin to do such a thing? Occupying Copyright is equal parts advocacy and action, and revolves around the following key precepts:

Libraries are meant to coexist with copyright, not stand in opposition to it. I don't know how we ended up in this sad situation where librarians are being equated in some circles with illegal file sharers and the Authors' Guild is suing a nonprofit attempt to make orphaned and out of print works more widely available to readers and researchers, but here we are. It wasn't always this way, you know. When Congress crafted a series of special exceptions for libraries to the U.S. Copyright Code back in the 1970's it was to acknowledge the vital relationship between copyrighted materials and the institutions which collected them for the purpose of advancing human knowledge and not merely the bottom line. Just as copyright itself was once envisioned as a productive force in its original limited incarnation, libraries answered the fair question of who was going to provide reasonable access to this vast proliferation of books and other media to those who couldn't possibly afford to buy it all.

Fair Use must be vigorously asserted in order to preserve it. For too long libraries and librarians have been cowed into accepting an ever-diminishing horizon as their legal right, either at the behest of a risk-averse general counsel or as the result of actual lawsuits- such as the Georgia State Copyright Case, which threatens to severely limit the exercise of Fair Use in higher education. In its original formulation, Fair Use was supposed to put the burden of proof on the offended party whose copyright was allegedly violated, but on a playing field where Big Content can effectively lawyer up until the end of time even the large universities are leery of pushing their luck. Couple this everpresent looming threat with a digital revolution that is pushing the for-profit sector inexorably towards a pay per view content delivery model (either a la carte or in subscription format, like Netflix) and it's all too easy for libraries to resort to coughing up licensing fees for what might otherwise be construed as Fair Use. Rather than accept this "better safe than sorry" mentality, librarians should be educating both themselves and their patrons in how to make their own Fair Use determinations and encouraging the lawful occupation of Fair Use whenever possible.

First Sale should apply to all forms of media- print, electronic, or whatever comes next. The doctrine of First Sale has served as the bedrock of libraries since time immemorial, but technological change, the triumph of End User Licensing Agreements, and recent legal developments are threatening to whittle this fundamental right down into a mere sliver of itself. This is a more difficult issue for individual librarians to occupy, but we can and should be agitating on behalf of our patrons for broader licensing terms from ebook and journal vendors, as well as lobbying Congress to carve out a new set of copyright exceptions that would trump digital licensing for non-profit educational and research purposes. At the recent Interlending and Document Supply Conference in Chicago, one of the presenters only half-jokingly suggested that librarians should form their own PAC, as even a modestly-funded political action committee is capable of wielding significant influence if they are able to stay tightly focused on a small set of key issues. Is it time to consider occupying the lobbying process in order to make these kinds of demands heard?

Libraries exist because copyright exists, but this is by no means a one-way relationship, as not only do libraries buy multiple copies of popular items, but they will also invest in more esoteric materials that the invisible hand of the market might otherwise allow to fail. They also purchase- at no small expense, mind you- the published fruit of the research process in the forms of scholarly monographs and academic journals, materials that simply would not have a market if not for libraries. Libraries also promote books, authors, and the cause of literacy. If we are currently losing the rhetorical battle, perhaps librarians need to open a new kind of charm offensive.

#OccupyCopyright

(Pic from Logo Designer Blog, where you can download the image as a free poster!)

Say it ain't so, Superfudge!

An Open Letter to Judy Blume,

Say it ain't so.

When I saw that the Authors' Guild had filed suit against the HathiTrust and five major university libraries over the issue of orphan works (i.e., copyrighted works for which the copyright owner cannot be contacted or identified), I was surprised to say the least. After all, hadn't Duke University's copyright guru Kevin Smith just reassured the library community that the HathiTrust and its partners were exercising due diligence in their efforts to preserve orphan works and make them accessible to scholarly researchers and the public alike? When I learned that you were the current Vice President of the Authors' Guild, my shock turned to disbelief. Now AG President Scott Turow I can understand-- heck, the guy's a lawyer, isn't he? But librarians getting sued by Superfudge? Try as I might, I could not wrap my brain around this, and I still can't.

Is this what it's finally come to?

I'm not going to argue the legal merits of your case, because people with a better grasp of U.S. Copyright Law have already done so elsewhere. If you're interested, check out the aforementioned Kevin Smith's post, or James Grimmelman's "The Orphan Wars," or Christine Ross' excellent "The 'Guilded' Age" at Copyright on Campus. The consensus seems to be that you're massively overreaching here, but given the recent court decisions backing some fairly counterintuitive readings of copyright maybe you'll get lucky and successfully bar the HathiTrust and its library partners from rescuing forgotten books from oblivion.

The irony, of course, is that would there even be an orphan work problem, if not for libraries? These books would have long since been remaindered and pulped, if libraries like the ones you sued had not graciously given them the precious shelf space to endure through the years past their popularity. That's what we're good at, you see: the long haul. And now you say that you don't trust the same librarians who dutifully preserved these books for decades to make a fair and honest determination of orphan work status? I understand that you believe that Google crossed the line, but the HathiTrust is not Google. Libraries are not Google. Have you been so jaded by the publishing industry that you refuse even to entertain the possibility that librarians might just have authors' best interests at hand here?

(BTW, I know that part of your objection is that these are Google's scans that are being used here. But whereas Google sought to digitize any book it could get its hands on, every digital copy stored in the HathiTrust on behalf of a participating library is backed by a physical copy. Orphan works can only be accessed by the libraries which actually own the item. This kind of "space-shifting" is the same principle that allows you to rip music to your MP3 player. Also, if you're worried about digital copies of your books leaking out to the internet, that ship has sailed- just Google "superfudge torrent" and you'll see what I mean.)

I know you're scared. Do you think we librarians aren't? The same technological revolution that is upending the publishing industry is wreaking an equal amount of havoc here in libraryland, and yet we all know that this is just the tip of the iceberg. What happens when every book begins and ends its life as a series of ones and zeros, and trees no longer have to worry about being cut down to print several million copies of the next legal thriller by your President Scott Turow? Amazon's plans to offer Netflix-style subscriptions to entire catalogs of books-- or "libraries," if you will-- has the Annoyed Librarian already sounding the death knell of the public library, and academic libraries aren't exactly faring all that well either right now. I'm usually more of an optimist about these things myself, but in light of your lawsuit I'm not so sure anymore.

Is this really how you want to be remembered by the library community? I don't think there's a librarian out there who didn't grow up on your books. The American Library Association routinely goes to bat for you, not only during Banned Books Week but every other week of the year, to keep your books on library shelves. My daughter- who is eight years old and just discovering your works- proudly informed us that for reaching her reading achievement goals in school she was choosing Fudge-a-Mania as her "reward" book. Only a week ago this would have tickled me pink, but now it just leaves a bad taste in my mouth. Authors and libraries have always enjoyed a special bond, but the Authors' Guild seems hell-bent on throwing this longstanding and mutually beneficial relationship under the bus rather than trust librarians to do the right thing. I know that you're only trying to look out for authors, but going after libraries like this is as surprising as it is disappointing.

Maybe I'm just being naïve, but I expected a little more from Superfudge...

UPDATE: Through James Grimmelmann's Laboratorium I've just learned that the Authors' Guild has been crowdsourcing the verification of the HathiTrust's list of orphan work candidates, leading to four of the 166 books being pulled from the list.

This is a good thing, folks.

The stated purpose of the Orphan Candidate list is "to help and encourage possible copyright holders to identify themselves so that we can identify them in the record." Due diligence does not equal infallibility. So far from proving that the HathiTrust's ineptitude or bad faith, this is a further demonstration of the HathiTrust and its partners' ongoing willingness to respect the intellectual property rights of authors and legitimate copyright holders.

UPDATE #2: The HathiTrust has announced that it will be suspending its Orphan Works program "indefinitely" in light of the Authors' Guild lawsuit and the discovery of at least one in-copyright item on the list of orphan works scheduled for release later this Fall. The University of Michigan, one of the five academic libraries partnering with the HathiTrust that was also named in the suit, made its own announcement as well to the same effect:

It was always our belief that we would be more likely to succeed with the cooperation and assistance of authors and publishers. This turns out to be correct. The widespread dissemination of the list has had the intended effect: rights holders have been identified, which is in fact the project's primary goal. And as a result of the design of our process, our mistakes have not resulted in the exposure of even one page of in-copyright material.

I know that the last sentence (emphasis mine) was meant to be in the spirit of CYA, but to me it represents a perfect illustration of the absurdity of this situation. When a senior library administrator feels the need to reassure authors that university students were not accidentally permitted to access their books, something has gone horribly, horribly wrong.

OK, so when do we panic?

If you're a librarian and you've been following Costco v. Omega Watch from the start, then I award you extra credit. This case, which involved Costco's practice of buying Omega's watches from abroad and selling them in their stores at huge discounts as loss-leaders meant to attract shoppers, was predicated on whether or not items manufactured overseas enjoyed the same "First Sale" protections that items produced in the United States- i.e., that once you bought something, it was yours to lend, give away, or resell as you saw fit. The Doctrine of First Sale therefore not only permits the existence of used book, game, and music/video stores, but it is also the portion of copyright law on which libraries rely in order to lend materials to patrons.

So needless to say, it was a little unnerving to watch this case make its way up to the 9th Circuit, where it was ruled that foreign works did not in fact enjoy the same First Sale protections as items manufactured domestically. At the time only a few librarians were really paying attention to this, as A. It involved watches, not books and B. Surely the intent of Omega's lawsuit was meant to circumscribe the actions of another for-profit company and not limit the lawful operations of such institutions as libraries. Even when the news broke that Costco would appeal the case to the Supreme Court I remember getting eye rolls and shrugs from my colleagues when I mentioned the case and its potential impact on our very large collection of foreign monographs.

As it turned out, the SCOTUS affirmed the 9th Circuit's ruling in a 4-4 split decision. Because it had not been a majority ruling, however, its applicability beyond that specific case was negligible. So score one for the status quo? Not so fast. For no sooner did observers point out that this decision left the field ripe for another similar lawsuit than the 2nd Circuit ruled once again that the Doctrine of First Sale did not protect the resale of foreign-produced items-- only this time the items in question were not watches, but books.

Supap Kirtsaeng had founded a niche business whereby he would purchase textbooks published by John Wiley in Asia, import them into the United States, and resell them for a profit. Despite the fact that Wiley had marked these books for limited international distribution only, Kirtsaeng insisted that because the items were legally purchased overseas, the Doctrine of First Sale still applied. Wiley disagreed, sued, and won. Although the 2nd Circuit acknowledged the murkiness of the law and predicted that its ruling would no doubt generate some controversy, nevertheless it found that First Sale protections could not be assumed for items that were manufactured overseas.

Unlike Costco v. Omega Watch, a lot of librarians took note of 2nd Circuit's ruling in John Wiley and Sons v. Kirtsaeng. To my profession's credit, I see a lot less hand-waving and a lot more hand-wringing this time around, but is it enough? With Fair Use itself being called into question in the ongoing Georgia State University copyright case, you don't have to be paranoid to wonder whether there isn't a concerted effort going on to rig the table in favor of a new licensed business model for content where every time a patron or user accesses a given item, money changes hands. Publishers have made it clear that they believe they deserve a cut from the used game/book/CD/DVD market for years, and now that they have the technological wherewithal to make that happen it's just a matter of squelching those pesky laws and legal exemptions by which alternate business models are currently suffered.

Whether or not libraries are being deliberately targeted right now is quite beside the point, because by then it will be way too late for us to do anything about it. Now is the time for libraries and librarians to mobilize, educate, and advocate. A great introduction to copyright, its intent, its limits, its abuses, and its exemptions is Teaching Copyright, a collection of readings, links, and other instructional materials collated by the Electronic Frontier Foundation. Find out if your library has a copyright guru, and if it doesn't either ask why not or become one yourself. Share what you know with your colleagues. Libraries depend on a fair reading of copyright law and vigorous exercise of its many exemptions for their our existence, which means every librarian is a part of this struggle, whether they know it or not! Make sure they are aware of what's at stake here.

Pirates of the Charles River

First MP3s, then DVDs, then books.  Perhaps the Academy thought itself to be a little too esoteric to find itself squarely lined up as the next target in digital piracy's electronic crosshairs, but this week's arrest of Aaron Swartz for the theft of over 4 million articles from JSTOR, a nonprofit archive of scientific journals and academic papers, should shatter any such conceit and serve as a wake-up call to librarians and content providers alike that the tremors currently rocking the publishing world (academic and non-) are merely the opening act for the kind of tectonic change that turned the entertainment industry on its head.

According to JSTOR's statement, Swartz, a 24-year old programming wunderkind turned digital activist and former fellow at Harvard University's Center for Ethics, allegedly had been systematically downloading articles from JSTOR in a manner designed to avoid detection by the system involving unauthorized access to MIT's computer network and illegal entry into a restricted wiring closet on the MIT campus.  Once JSTOR got wise to what was going on, they stopped the bulk downloading, contacted Swartz, and confirmed that the content he had obtained was "secure" and had not been saved or uploaded elsewhere.  Shortly thereafter Swartz was indicted by the U.S. Attorney for the District of Massachusetts.

This is not the first time Swartz has been involved in a brouhaha concerning downloading activities.  In 2009 he downloaded over 19 million pages of court documents via a free trial of the Federal government's Pacer (Public Access to Court Electronic Records) system, following the call of open-government activist Carl Malamud to help make such public information more accessible.  Swartz had managed to download approximately 20% of the entire database before angry officials at the Government Printing Office suspended the free Pacer trial and threatened an FBI investigation.

(Iinterestingly enough, it was United States Attorney's Office, not JSTOR-- or MIT, whose computer network and facilities were illegally accessed to permit the downloading activities-- who opted to pursue criminal charges in this case.  Coincidence much?  You be the judge.)

Swartz had also downloaded over 400,000 law review articles, this time as part of a research project to determine the source of their funding, the results of which were published in the Stanford Law Review in an article written by Shireen Barday.  While he was at the Center for Ethics in 2010 and 2011, Swartz engaged in additional research involving large data sets on the issue of institutional corruption, and though his motive for the JSTOR downloads is still unclear some have suggested that he may have had a similar data-mining project in mind and not an attempt at wholesale data liberation.  As JSTOR points out in their statement that they welcome such research and have even set up a site to facilitate these kinds of projects (http://dfr.jstor.org), however, this alternative explanation seems unlikely.

Whatever his motivation was (I'd recommend this post at Weibel Lines for the best overall personal assessment of Aaron Swartz, as Stuart Weibel has followed the career of this digital "phenom" for over a decade), the Feds brought down the hammer on him and then some.  If their intent was to make an example of Swartz so as to prevent any additional acts of bulk downloading and/or distribution, the news today that someone just uploaded 33 gigabytes of JSTOR content to the Pirate Bay in apparent retaliation for the arrest suggests that this strategy might end up backfiring big-time.

Indeed, just a casual perusal of the largest Reddit thread about Swartz's indictment (Aaron Swartz was one of the founding members of Reddit) finds little sympathy for JSTOR or publishers in general.  "He's now officially my hero,"  one commenter says.  "I hate journal publishers.  Every scientist hates journal publishers.  They're parasites that control access to content someone else created and that the taxpayer already paid for.  How can I get on his jury?"  Another chimes in with a decidedly egalitarian perspective:  "God forbid anyone should read a scientific journal without paying for the privilege.  What would the world come to if the common people got hold of the knowledge reserved for corporations and universities?"

Now, to be fair, JSTOR is a nonprofit organization whose business model explicitly includes options for affordable and sometimes even free access to the scholarly content they have collected and digitized.  But as library budgets continue to dry up, access to online resources-- however reasonably priced--  will increasingly find themselves on the chopping block as administrators frantically search for more things they can cut, driving more and more students, scholars, and researchers to the digital black market to get what they need.

Have you ever emailed a colleague from another institution a PDF from your online holdings, whether or not you had the license to share said resources with outside parties?  Odds are you have.  Did you know, however, that there are entire swaths of the internet where people with valid library credentials to proprietary databases provide articles on demand?  The Scholar "Subreddit" on Reddit.com is just one instance of this scholarly digital black market, which runs its own parallel course to traditional resource sharing (i.e. commercial document delivery and interlibrary loan).

A born digital generation of scholars do not stop to think about copyright or licensing terms-- they want what they need for their research, and they want it now.  Combine this group with the "hacktivist" demographic who laughs at the notion of paying for MP3s or DVDs and feel that failing to offer DRM-free versions of your software is more than legitimate cause to pirate your warez, and you can see why the government and content providers might be a wee bit concerned that Aaron Swartz is just the tip of the iceberg.

They are of course exactly right to be afraid.  The same revolution which turned the entertainment industry upside-down and devastated the traditional publishing industry has now reached the rarefied heights of the Ivory Tower, where years of growing inequities of access and cost and runaway prices have made academia ripe for just such a reckoning.  For years now the music business has had to learn how to compete with widespread availability of free downloads, something that video and book producers are still only trying to figure out themselves.  Scholarly publishers, aggregators, and content providers would do well to watch these markets, learn from their successes and failures, and adapt quickly to the new reality...  or else.

For if well meaning and reasonably affordable non-profits such as JSTOR are not safe from the digital pirates, then who is?

Disclaimer #1:  I work for Harvard University
Disclaimer #2:  I was an undergraduate at MIT
Disclaimer #3:  I am a librarian who specializes in the lawful/licensed sharing of library resources
Disclaimer #4:  I have assisted the JSTOR Project in my work activities
Disclaimer #5:  I am an active member of the Reddit community
Disclaimer #6:  I have never, ever illegally downloaded anything in my entire life
Disclaimer #7:  One of the above disclaimers may not be 100% true

On 800-pound Krakens and missing the boat

On her excellent blog Attempting Elegance Jenica Rogers has a great post about the current brouhaha surrounding Netflix and its recent announcement that it would be changing its pricing structure more or less to disincentivize its DVD business and shore up its streaming revenues in advance of what are going to be catastrophic increases in digital licensing fees over the next year or two as its current sweetheart deals with content providers expire.  Rather than express shock or outrage at Netflix, Jenica says the only surprise here should be that any of us-- especially those of us in the library community-- are still surprised:

Why is anyone surprised by this? Or outraged? If you’re an information professional paying attention to the information economy, why did you  not see this coming? Why are we doomed to repeat our shock and horror over and over and over again? What is with this naivety we have that somehow The Next Big Corporation won’t actually act like A Big Corporation about their information commodities? This is our world. This is the information economy. Elsevier, Wexis, the American Chemical Society, HarperCollins, Amazon, the RIAA, the movie studios — they don’t love libraries (or the consumer) the way we think that we should be loved. And they sure as hell aren’t looking out for our best interests. No one is. Only us.

This has been more or less my reaction as well.  The beauty of Netflix's streaming online video is that it so successfully flew under everyone's radar for as long as it did, but perhaps by doing so they actually did us a massive disservice.  For one brief shining moment Netflix seemed to be offering a product that embodied everything that the techno-utopians said the Internet should be offering us.  Instead of paying cable companies a cool C-note every month for a paltry selection of "on demand" television shows and movies (many of which we had to pay extra for anyway), the slayer of Blockbuster comes along and gave us a thousand times the selection for the price of a small cheese pizza.  How could Netflix not succeed?  It seemed to good to be true.

Guess what?  It was too good to be true.  No one expected Netflix to make such a bold end-run around the content providers and traditional lines of distribution--  least of all the companies that had been disintermediated-- but as soon as it became clear that this is indeed what happened and that Netflix represented a clear and present danger to the home entertainment market the battle lines were quickly drawn.  Internet service providers suddenly started to rediscover the joys of bandwidth caps (even while the prices of delivering hi-speed broadband services were dropping), while rightsholders began jacking up the aforementioned digital licensing fees or denying permission altogether for content that Netflix had originally been able to license for a song.

The old media dinosaurs may be slow on the uptake, but they can still be quite ruthless.  Personally I don't blame Netflix in the slightest for doing what they felt they had to do in light of such organized resistance to their business model, and I suspect that a lot of the animus currently being unleashed at Netflix for its pricing changes would be directed elsewhere if the company had done a better job of explaining to its customers exactly why it was doing what it was doing:  i.e. "They are trying to kill us."  Netflix instead chose to downplay the context of these changes, and thus missed a unique opportunity to enlist us in their battle to provide a better entertainment alternative.

There's an unprecedented amount of anger and mistrust towards traditional content providers out there right now, and I think Netflix underestimated how much they were tapping into that as part of their business model.  Whether or not they can regain the trust of those whom they have alienated remains to be seen.  Meanwhile, Jenica wonders if we as librarians are not yet again ignoring the window of opportunity that the Netflix fiasco has reopened regarding the proper balance of access to information and the fair remuneration to content creators and/or rightsholders in the new digital marketplace:

More important than my personal frustration, I think that libraries have a moment in the next 48 to 72 hours in which someone in our community could draw the line publicly connecting our information brokering challenges and The Netflix Thing. The public is furious about this, and there’s an advocacy moment that we should leap on. “Libraries are in trouble and suffering — just like you are.  This is part of a bigger problem, and we’re feeling the pain, too. Think Netflix and the studios suck? Check out THESE stories about ebooks!”

Jenica is exactly right-- this is part of a bigger problem.  And I think she's also right that we as librarians will collectively miss the boat in seizing the moment to address it.  This boat will be missed because we have not yet learned to advocate as a profession on the digital front, as we do on other issues such as the right to privacy and intellectual freedom.  Part of the reason for this is that a given library or consortium's access to digital content is dependent wholly on whatever individual contract it is able to secure with the provider, creating a divide-and-conquer situation in which our collective advocacy powers have effectively been disrupted.  But I suspect that the real reason that we're unwilling to to do so is the very real prospect of getting sued for testing the waters beyond what has been established as being absolutely safe.  This is the 800-pound Kraken that nobody wants to talk about, but it's lurking out there nevertheless, waiting to sink anyone impetuous enough to steer their boat out past the metaphorical bar.

We have been told over and over that we as librarians need to be more vigorous in our interpretations of Fair Use, while at the same time we are watching Georgia State get the pants sued off of it for doing just that.  Already our institutional legal counsels are as a whole gunshy about pushing the boundaries of copyright law-- what do you think will happen if the publishers carry the day against Georgia State?  No one wants to be a target, but unfortunately U.S. Copyright Law is designed such that the only way to fully exercise your rights to Fair Use and other perfectly legal exceptions to the rights of the copyright holder is to paint a bullseye on your chest.  Is it any wonder then that few if any individual libraries or librarians are willing to take a stand on this issue?

What we fail to realize as a profession, however, is that none of the other advocacy that we do as librarians will amount to so much as a hill of beans if we allow the digital future to be written wholly by other parties.  If we don't collectively demand a seat at the table on this issue, the content producers and their providers are perfectly happy with locking us out the restaurant for good.  How I wish we could permanently enlist someone like Cory Doctorow-- a friend of libraries and outspoken critic of current intellectual property laws-- to help mobilize librarians around this cause as he so clearly has with other issues, but fundamentally it rests on the shoulders of every librarian to recognize that our very enterprise is at stake here.  Like Jenica, I'm not optimistic at all that anything will happen this time around, but I still hold out hope that we will get our shit together before it's entirely too late.

UPDATE:  Who better than iCarly's Jerry Trainor to offer some closing thoughts on l'affaire Netflix...