The Georgia State opinion is out at last, a chewy 350 pages of logic-chopping and footnoterie. The Loon cast her beady black eyes over it last night; as is her wont, she thought about the most practical responses from all sides to the suggestions in the ruling.
Obligatory disclaimer: The Loon is not a lawyer, and she doesn’t work for you. Basing your policy on the legal analysis of a non-lawyer who has zero duty specifically to you is liable to land you in a world of hurt. Don’t do that. It would be witless. None of the Loon’s readers is witless, right?
Several infringement claims failed because no information was to be had on whether students actually read the material digitized for them. (A cheap shot is available here, but the Loon will pass on it; when low read-counts as measured in the CMS happened during one of her classes, it turned out students were clicking links from the PDF syllabus, not the course-management system. The Loon apologized to her class sincerely and profusely, and stopped worrying about their reading habits.) This suggests a simple prophylactic for e-reserves systems and course-management systems: do not keep logs of reading usage.
As a librarian, the Loon delights in this solution; libraries have protected their patrons from various kinds of legal interference through purposeful non-record-keeping for decades. As an instructor… she finds it irksome, because it’s nice to know that students are at least clicking links, but if not tracking student reading is the price of kicking out greedy nosy publishers, she’s in favor. Students can always click from the syllabus.
The implications of this opinion for academic samizdat—the practice of sending ’round PDFs via private email on request—are left as an exercise for the reader. Suffice to say that Twitter is a better home for request activity than many online venues because of the difficulty of searching more than a few days into its past. That’s not to say Twitter is good, because tracking real-time activity on A Certain Hashtag Probably Already Known To Gavia Readers is simplicity itself, but Twitter is at least better than someplace with greater utterance permanence.
The publishers could try to block this loophole by insisting that the judge insist that e-reserves and course-management systems log use. The Loon wonders whether they’d run into a pretty stiff FERPA defense—but they’d just better run into some strong defense, because if this gambit is obvious to the Loon, it’s obvious to the plaintiffs’ lawyers, guaranteed.
One successful claim (claim 72, if you care to check the opinion) succeeded because of a “heart of the work” finding. (If a book has a short section of self-spoilers, reproducing that section creates significant disincentive to buy the book, weighing against a fair-use finding. This doctrine is a good bit older than this case.) The Loon suggests, perhaps a bit wildly, that a “heart of the work” database of infringement claims succeeding on this argument be built and maintained. This will enable patrons and libraries to avoid known work-hearts, and will discourage publishers from claims that a given book has more hearts than a Time Lord.
The publishers and their authors face a classic Trithemius moment. They may love print dearly. They may even love it as much as they say they do (a claim the Loon often finds to be more rhetorical than behavior-predicting). They may justifiably quail at the expense and complexity of publication workflows that include electronic products. But if the only way they have a prayer of making money off electronic excerpt use is by a) having a digital version, and b) licensing excerpts of that digital version (which is what most of the successful infringement claims in the Georgia State opinion imply) then by gum that’s what the Loon thinks they’ll do—and if authors don’t like that icky digital stuff, authors can lump it, because authors lose the chance to make those decisions the instant they sign a copyright-transfer form.
Is that economically sensible? Probably not, if the numbers in the opinion hold up. Publishers aren’t making spit on excerpt licensing, and the no-logging loophole suggests to the Loon that this opinion won’t actually be a giant licensing bonanza for them. The Loon’s sense, though, is that publishers act out of hurt self-righteousness at least as often as they do economic sense, so they’ll throw themselves at the Copyright Clearance Center on the instant.
Another perverse publisher incentive the opinion offers is the intentional creation of gigantic books—probably edited, because hardly anyone writes scholarly mega-books these days, given how tenure and promotion processes militate against them—that are easily chopped up into individually-licensable chunks. It was suggested on Twitter that glomming a ton of chapters or essays into a database would be a potential sequel; the Loon respectfully disagrees, because databases enjoy significantly less copyright protection in the US than do books.
Note, however, that unlike a print book with its paper-and-paperboard-and-glue affordances, an ebook has a near-incalculably vast maximum length. Trithemius, again! Print is lovely, but e- may turn out lucrative. (What’s the difference between an ebook and a chapter database? The Loon isn’t sure, but wouldn’t be surprised to see this very question litigated someday.)
So the Loon expects the scholarly-book market to go e- in a big way in the next year or three, barring something unanticipated in the remedy phase of the Georgia State trial. As fond as these publishers are of walled gardens, this might even turn out to be a shot in the arm for iBooks.
As for the CCC, they must be both gleeful and terrified. Gleeful, of course, because of all the publishers they’ve courted who will now beg for an alliance. Terrified—because the fourth-factor analysis in the opinion suggests that the best way to preserve fair use from fourth-factor encroachment is not to pay licensing fees for e-reserves, ever. If academic libraries collectively figure this out—which is a big, big if, as craven as many of these libraries and nearly all of their institutions’ lawyers are—the CCC’s business model doesn’t look good.
The Loon is still asking herself whether this decision will cause enough inconvenience to faculty to create an anti-publisher backlash. If student-behavior tracking in course-management systems goes away per the Loon’s analysis above… no, even that’s not enough; instructors have instructed for ages without really knowing whether students did the reading. The opinion also pulverizes several of the sillier FUD-based restrictions on e-reserves, such as the one-term-only restriction and the horrendous Classroom Guidelines. On balance, monograph publishers are likely safe from Elsevier’s unhappy position, for now. The Loon thinks this a sincere pity—those conniving bastards sued a university! for teaching! they deserve burial in Dante’s Antenora!—but it is what it is.
As for academic libraries, much depends on whether we decide we have guts, as we often don’t. If we have guts, we’ll tell the CCC to take a long walk off a short pier, and we’ll continue to digitize for e-reserves as we have done. If we don’t locate our spines, we’ll jump into bed with the CCC, whereupon it will promptly go Access Copyright’s way (urged on by hurt self-righteous publishers who think nothing of suing universities), and we and our patrons will be worse off than ever.
Unhappily, the Loon would place her quatloos on the latter outcome. Not only does paying off the CCC look superficially “more legal,” if publishers rush to join the CCC such that its coverage improves significantly, libraries will find themselves able to diminish or even redeploy altogether the staff resources thrown at e-reserves scanning. Tempting.
Wrong, shortsighted, witless, but tempting.
- Innovation by… sitting on one’s tail-feathers
- Wishing them the best