Pull quote: “But three recent events and publications have me made more deeply aware of something I think scholarly authors are also beginning to discover—that the traditional commercial publishing model is actively harmful to the interests of good scholarship. Not just failing to keep up with changing conditions, but lagging behind in ways that threaten the quality and integrity of the scholarly enterprise itself.”
Pull quote: “Publishers were seeking a ‘new deal,’ a super-property right that is unprecedented in any other market place. And what libraries ‘won’ (remembering that no library was a party to the case) was simply the right to proceed as we have been for many years. I have no doubt that if the lower courts had been upheld in this case, publishers would begin to demand ‘public lending fees’ from libraries whenever a book was printed in another country, and would have moved operations offshore to increase the situations in which they could demand such a fee (as the Second Circuit Court of Appeals acknowledged was a likely outcome). It is an overstatement to call this a victory for libraries; it was merely a successful defense of what we have done for many years, which, it turns out, is something that our courts really value and appreciate.”
Pull quote: “It appears that the Court took very seriously that ‘parade of horribles’ that were suggested if they upheld the Second Circuit — libraries would be unable to lend some materials without a license from publishers., student could be prevented from buying or selling second-hand textbooks, etc. According to the Court, these were too distressing, and too likely to occur.”
Pull quote: “Overall, the atmosphere for fair use on campus is a lot better today today than it was six months ago. We have seen a pretty convincing victory in the Georgia State e-reserves case, a sweeping one in the HathiTrust case, and a tepid affirmation of fair use (probably!) in this streamed video case. Although the first two of those cases are being appealed (we do not know if AIME will appeal this latest decision), we now know that courts are quite sympathetic to fair use by academic libraries and on college campuses. We know that most of the arguments that content providers have long offered to discourage reliance on fair use have been rejected. We know that no campus has yet been found guilty of infringement when it makes reasonable fair use of lawfully acquired materials for limited teaching purposes.”
Pull quote: “We can no longer preserve the illusion that all this was about was to provide some certainty about fair use for digital course content. The publishers spent 6 million and now could walk away with a workable, if unpopular, standard. Instead the battle against universities and higher education will continue. How sad.”
Pull quote: “This is not about protecting authors; it is, as it always has been, a marketing ploy, especially for the CCC, that aims to compel libraries to give an even larger share of their budgets to these publishers, and the groups that are financing them, without getting any new scholarship for that money.”
Pull quote: “So the big question for governments and funders as they consider how best to support the transition to public access is why some traditional publications cost so much (and would pass those alleged costs on to taxpayers) while Gold OA journals and Green self-archiving seem to be more cost-effective alternatives. A lot of additional transparency would be required before recommendations such as those in the Finch report could be taken seriously.”
Pull quote: “We should not allow FUD (fear, uncertainty & doubt), which is often spread by institutions that are trying to preserve the problem to which they see themselves as the solution (to paraphrase Clay Shirky), to narrow our vision of a sustainable system of scholarly publishing. The problem we should be addressing is predatory publications, OA and subscription-based, and publishing ethics across the board.”
Pull quote: “Mathematicians have developed a very different approach to disseminating their own work, and accessing the work of their colleagues, from those that have developed in literature or anthropology. If the approach to publication contracts is to be made more rational and more attuned to the specific contexts that contracts are supposed to address, the disciplinary groups need to lead the way. We could make a lot of progress, I hope, if major scholarly societies drafted model publication agreements and offered them to their members to use.”
Pull quote: “The proposed order is clearly intended to humiliate GSU and to make fair use as difficult as possible for them. It reads to me like a party who actually won very little at the trial still trying to spike the ball in the other parties’ face. I hope the Judge will see it as yet another attempt to overreach the evidence on the part of the publishers.”
Pull quote: “The place to begin is with the recognition that neither libraries nor policy makers have an obligation to preserve a particular business model just because it has existed for a while, if it is not able to support itself in the face of rapid technological change. To say that scholarship will dry up if some publishers go out of business is simply not true; scholarship will continue and it will find new ways, and likely more efficient ones, to reach those who want or need to read and use it. This is already happening, which is why the publishers are so frightened in the first place.”
Pull quote: “Instead, copyright law tries to balance exclusive rights with exceptions crafted to encourage certain uses of copyrighted materials that are considered particularly beneficial to society. Thus the rights become qualified and the exceptions are larded with rules and requirements that narrow their application. Balance is required for fairness, and fairness inevitably leads to complexity.”
Pull quote: “In general I expect librarians to be happy about the outcome of this case. It suggests that suing libraries is an unprofitable adventure, when 95% of the challenged uses were upheld. But there will also be a good deal of hand-wringing about the uncertainties that the Judge has left us with, the places where we need information we cannot reasonably obtain, and the mechanical application of a strict percentage. We will spend considerable time, I think, debating whether and how to implement Judge Evans’ rules into our own copyright policies.”
Pull quote: “It is very important that the MLA, one of the oldest and largest scholarly societies in the U.S., is taking notice of the changes that are happening in scholarly communications. As with the faculty open access conversations, this is evidence that change is penetrating the academy broadly and deeply. The revolution in scholarly communications will not, in the end, by accomplished by librarians; it will be accomplished by scholars, authors and their scholarly societies. That those groups are beginning to notice the need for change and to engage in the debates about how to accomplish it is a significant step forward.”
Pull quote: “As academic librarianship moves more and more to a consultancy model, our education ought, in my opinion, begin to mirror this model of ‘application first.’ We should begin with real instances of needs felt by faculty and students, whether those needs be for description of a unique digital resource that is being created, for preservation of a data set in an unfamiliar or difficult format, or for resources that are usable in a project that will be available to all on the open web. From the process of seeking solutions to those specific and always unique problems, the theoretical knowledge that defines our profession will emerge, but it will be grasped in a new way, as a tool born out of application.”
