Tag Archives: libraries

Google Book Search panel at ALA Midwinter

The ALA’s Copyright Subcommittee (Committee on Legislation) is hosting a panel on the Google Book Settlement at ALA Midwinter this year — Saturday at 1:30 at the Grand Hyatt. (I’m on the committee and on the panel.) Should be interesting.

Come to the Google Book Settlement Session at ALA Midwinter Conference January 24th, 2009, 1:30-3:30, Grand Hyatt, Maroon Peak Room

If you’ll be at ALA’s Midwinter Conference in Denver at the end of January, please check out the session “Google Book Search: What’s In It for Libraries?” The open forum will be hosted by the ALA Committee on Legislation’s Copyright Subcommittee to discuss the proposed Google Book Search settlement. The discussion will take place on Saturday, January 24, from 1:30 to 3:30 p.m. at the Grand Hyatt, Maroon Peak (listed as the Washington Office Breakout Session IV – Google Book Search in the program).

Panelists will include Dan Clancy, Engineering Director for the Google Book Search Project, Karen Coyle, Digital Librarian and Consultant, Paul Courant, Dean of Libraries at the University of Michigan, and Laura Quilter, Librarian and Attorney at Law. The session will be moderated by Nancy Kranich, chair of the COL Copyright Subcommittee. Following brief opening remarks by each panelist, there be an opportunity for dialogue and questions from the audience.

Additional information about the proposed Google Book Search settlement is available at http://wo.ala.org/gbs/.

oclc will take member feedback on catalog records policy change

OCLC will take member feedback on its recent proposed change in licensing terms on cataloging records. See OCLC’s press release from yesterday, “OCLC Board of Trustees and Members Council to convene Review Board of Shared Data Creation and Stewardship.” link from librarythingtim

yaay.

update 2009/1/15: Salon on OCLC at Radical Reference, Friday, Jan. 23, 8 pm, at ABC No Rio, 156 Rivington St., Manhattan.

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Section 108 report released

The Section 108 study group has finally released their report. See:

For those who are not copyright or library geeks, Section 108 is one of the most important parts of the Copyright Act for libraries.

For those who are having trouble reading the medium-grey on light blue summaries of recommendations in the Executive Summary (what were they thinking?), here’s my summary of the summary:

  • Museums should be covered by Section 108
  • Recommending stricter criteria for eligibility for libraries, including “possessing a public service mission, employing a trained library or archives staff, providing professional services normally associated with libraries and archives, and possessing a collection comprising lawfully acquired and/or licensed materials.” Hmm.
  • Section 108 should be amended to permit some outsourcing of library & archive exceptions.
  • Ease up on the restrictions for replacement copies in 108(c), to include fragile copies, but also some strengthening of requirements — for instance, libraries are required to look for copies available at a fair price, and the Committee recommends that can include “licensed” copies. Hmm.
  • Recommendations about preservation of unpublished works, including limiting this to “unpublished works that have not been publicly disseminated.” They include a definition of “not publicly disseminated”, but I wonder how tenable these distinctions are going to remain. Also noting that borrowed copies may not be archived by the borrowing institution.
  • An exception should be added to permit preservation of “publicly disseminated works” whether published or otherwise publicly disseminated. These are dark archives, so access is specifically restricted: “The library or archives restricts access to the preservation copies to that which is necessary to effectively maintain and preserve the work”. A long list of requirements to qualify here; this is really quite bloated IMO.
  • An Internet Archive exception “to permit … capture and reproduce publicly available online content for preservation purposes and to make those copies accessible to users for purposes of private study, scholarship, or research.” There should be an opt out, libraries and archives should not interfere with material exploitation, and labeling is required.
  • The television news exception should be amended to permit streaming of archives, but not “downloadable copies.”
  • 108(f)(1) should be amended to clarify that libraries do not have liability for unsupervised use of reproduction equipment, e.g., library users’ personal cameras, scanners, etc. And reorganize the darn section logically.

Well, I could have hoped for a lot more, but there are some improvements here. Good luck getting them through Congress, though, especially in an election year. Maybe we’ll see some substantive reforms in 2009, but I’m not going to bet the farm on it.
(cross-posted @ sivacracy)
followup 4/28: Here’s a link to Mary Minow’s post of Peter Hirtle’s analysis: posted at Stanford Library fair use website.

mostly information law news round-up

* Judge White withdrew his order requiring the shutdown of wikileaks.org. See also 3/1 bits blog. (NYT 3/1)

* The music industry has yet to pay artists any of the money it has received in settlements and lawsuits; the artists are pissed. NY Post 2/27)

* The owners of the game scrabble are pissed off at Scrabulous. (NYT 3/2)

* Daniel Solove’s new book, The Future of Reputation, is available online with a creative commons license, thanks to Yale University Press. Annoyingly it’s chapter-by-chapter. badgerbag read it and promises a scathing review, so I’m looking forward to seeing what she has to say.

* Clay Shirky’s new book, Here Comes Everybody, has a hold list at least 3-deep at the Boston Public Library. )-8

* Paul Cash, the principal of Burleson High School in Burleson, Texas, is censoring the school yearbook’s article about students who are also parents, in part because it conflicts with the school’s “abstinence-only” education program. A program that was, umm, manifestly not successful. As illustrated by the kind of head-in-the-sand attitude that seems to think that if only the principal can censor the yearbook, he can change reality, or lie to the community about it. “I believe that as principal of the school it is my obligation to make sure that whatever our students put into press accurately reflects the ideals and values of the community.” Apparently the students think that the press should reflect reality. I guess the teachers have been doing their jobs. Student Press Law Center has the scoop (2/13). (link from pharyngula, 3/2)

* Schwarzenegger’s administration is defending California’s gay marriage ban before the California Supreme Court; a ruling is due by June. There’s a certain gross irony in this: A couple of years ago, Schwarzenegger vetoed a gay marriage act passed by California’s legislature, saying that this was something that should be left to the courts. That was itself yet another proof that the so-called federalist style of conservatism is really just window-dressing outcome-based politicking as principled ideological opposition to particular forms of government. (SJ Mercury, 3/2)

* Some people in Namibia are worried that schools and libraries are getting away with too much using information, so they’re starting a new copyright enforcement body just to go after the lucrative school and library market. Watch out for the Namibian Reproduction Rights Organization (NamRRO), which isn’t enforcing any rights to reproduce that I’d like to see enforced: The rights to reproduce for fair use, the rights to reproduce or not to reproduce biologically …. The organization is being started by “Moses Moses”, whose name seems a little reproductive itself. Good idea, Moses; way to start killing creativity at the most upstream possible place. (All Africa, 2/29)

* In Illinois, reproductive rights are being upheld: A very silly law that attempts to mandate good parent-child relationships and communications, specifically requiring that pregnant minors must tell their parents if they are having an abortion, continues to be enjoined. A “pro-life” group described the decision as, “a major defeat for the people of Illinois,” apparently forgetting that teenagers are people too. (AP 3/1)

* Heather Morrison at her awesome blog “Imaginary Journal of Poetic Economics” has pointed out that plagiarists should avoid open access like the, ah, plague, since it’s so much harder to catch them without open access. Peter Suber at Open Access News gathered several of her related posts in one excellent introduction to Morrison’s concept, “aiming for obscurity”. Read it or wish you had.

* Rebecca MacKinnon reviews the latest round of lawsuits against Yahoo! by Chinese dissidents who, among other things, got screwed over by Yahoo!’s release of their information. (RConversation, 3/3)

Elsevier’s environmentally-unfriendly licenses

Why does Elsevier hate the environment and all the trees and all the little children who will be living in a world 50 years from now harmed by Elsevier’s really stupid insistence that its electronic documents be PRINTED and then SCANNED IN before being sent out for ILL ????

Seriously, faculty should really reconsider submitting to Elsevier journals. What a waste of human effort as well as trees.

Open Access News has the rest of the scoop. Although this isn’t new news, it seems like an opportune moment to bring it to people’s attention.

See also digital koans.

florida protected from stoner librarians

Or at least those who stuck around for the drug tests. After Gainesville, Florida, implemented drug testing for its library volunteers, the number of volunteers, most of whom were senior citizens, dropped from 55 to 2.

Bill Maher gave this story the fisking it deserves, and radref at Radical Reference pointed me to it to begin with. Then I realized that, no, I had seen it before on sivacracy, but that portion of the tape got wiped.

I really had thought, somehow, that this country had turned the corner on ever-increasing numbers of ridiculous, pointless, and oppressive drug tests, but perhaps not.

“scan this book”?

siva linked to “scan this book!”, a NYT magazine article by kevin kelly, with a promise to post comments about it soon. i look forward to them, and in the meantime will post my own (hurried & no-doubt flawed) quick reactions to one point:

Authors and publishers (including publishers of music and film) have relied for years on cheap mass-produced copies protected from counterfeits and pirates by a strong law based on the dominance of copies and on a public educated to respect the sanctity of a copy. This model has, in the last century or so, produced the greatest flowering of human achievement the world has ever seen, a magnificent golden age of creative works. Protected physical copies have enabled millions of people to earn a living directly from the sale of their art to the audience, without the weird dynamics of patronage. Not only did authors and artists benefit from this model, but the audience did, too. For the first time, billions of ordinary people were able to come in regular contact with a great work. In Mozart’s day, few people ever heard one of his symphonies more than once. With the advent of cheap audio recordings, a barber in Java could listen to them all day long.

Um, no. I mean, partly yes, but partly no. Let’s not get the “protected physical copies” cart before the horse of creativity and economic power. The “greatest flowering of human achievement” has been enabled by a relatively wealthier populace; the wealth has been largely enabled by technology which enabled faster & more efficient production and resource extraction. Billions of ordinary people can come into contact with works, great or otherwise, because they have surplus capital and time to purchase them (technology, democracy, FEMINISM, the labor movement, etc.); it is cheap to reproduce them (because of technology); and as a result of this expanded marketplace, and greater leisure / capital, more people could create their own works. (And the barber in Java, if she is like barbers in many other developing nations, is listening to the recordings despite copyright law, not because of it.)

The transitional technological moment when works could be mass-produced but only with expensive equipment and with relatively expensive resources allowed a chokehold on that production, and certain parties were able to make a killing on that chokehold — record producers, publishers, and the like. But the chokehold didn’t enable the flowering — like a dam, it just siphoned off energy from a river that was already flowing. Sorry for the mixed metaphors. But let’s not isolate creativity and copyright from history and the real world.

There’s no question that, as Kelly suggests, this is a clash of business models. But it’s important to characterize the middle-man business model correctly: not as the cause of creativity, but as a by-product of creativity + a transitional technological state. If you think about it that way, you quickly figure out that middle-men’s interests not only aren’t protected by copyright law, they’re not even the interests described in the Constitutional “Authors and Inventors”. If the middle-men want to continue making revenue, they’ll have to do it in some way that adds to the value. The principal means they formerly had of adding value no longer cut it. Creation and capture are getting cheaper, being reduced just to their human inputs of creativity and ingenuity — as they should be. And distribution costs are approaching zero. Thanks for bringing your expensive printing presses, recording and processing equipment, and land-based distribution methods to the party, guys, but we can party on without them now. What else ya got? Editing? Selection? Indexing? Archiving? Tagging? Promotion? Because all those things could be very helpful.

… Anyway, I largely enjoyed the article, although I skimmed it very quickly during a short break. I look forward to reading it again at more leisure (and to Siva’s eventual commentary).

data mining & online information

Today is a beautifully misty day, perfect for leisurely procrastination from holiday tasks like installing back-up hard drives for the mom-in-law. (Well, “in-law” if we were in Mass.; everywhere else in the US, “mom-in-out-law”.) So naturally I found myself doing a little backlog reading of blogs that I don’t read every day, and was fortunate to see Lauren Weinstein’s post from early November, considering the privacy implications of online digital libraries.:

Our hero Aton (actually, “hero” isn’t really the right word) visits a planet that is basically the known galaxy’s central library. It has almost literally endless stacks of books collected over centuries, still kept (for now, but probably not much longer) for historical reasons, even though nearly all of their contents have long since been available via computers from anywhere in the galaxy.

When Aton shows up, one of the few librarians is very pleased to have a visitor — they’re few and far between — and offers to help Aton with some reference work in the stacks.

The librarian immediately and correctly deduces (in an offhand remark) that since Aton wants to use the stacks, he is probably looking for illicit information, given that all attempts to access “proscribed” data though the computers is automatically logged and reported, even though such information would not be accessible. But the stacks are far too vast to be selectively expunged.

[Discussing Piers Anthony’s Chthon.] Watching all the news coming down the pike about Bush Admin. domestic surveillance, Lauren’s post seems particularly relevant.

Calling Doctor Google

As a former medical librarian I thought this editorial by a medical librarian in the BMJ was fascinating.

First this amazing information:

Within a year of its release Google Scholar has led more visitors to many biomedical journal websites than has PubMed (J Sack, personal communication, 2005).

… which certainly lends credence to the pro-tagging, anti- or indifferent-to-cataloging thinkers.

I was particularly interested to see the table from the BMJ’s web access stats, which lists Google as its number one referrer, by far, in November 2005 (345,756), and Google Scholar as its number two referrer (105,185). PubMed trailed significantly far behind — fourth place was PubMed Medline (14,522) and fifth place was PubMed Central (9,616). Of course, one shouldn’t read too much into this relatively raw access-data. A lot of factors must play into the numbers. Who are these searchers? Medical consumers typing in terms in google, hoping for consumer information? If they end up going to the BMJ, that’s probably more than most of them want to know, at least in an initial search. Or are they physicians realizing google is a shortcut to particular articles? Does this set of referrals include, for instance, academic-affiliated researchers? Many of them probably have access to their own institutional subscriptions to BMJ, and if requests are being routed through a local proxy then how is that reflected in these numbers? Still, anyway you slice it, it’s obvious that Google — or maybe it’s better to describe it as “general search” — is becoming significant for medical research. And Google Scholar is more successful than I’d realized.

And then this cropped up in the editorial, too:

In a recent letter in the New England Journal of Medicine, a New York rheumatologist describes a scene at rounds where a professor asked the presenting fellow to explain how he arrived at his diagnosis.[4] Matter of factly, the reply came: “I entered the salient features into Google, and [the diagnosis] popped right up.” The attending doctor was taken aback by the Google diagnosis. “Are we physicians no longer needed? Is an observer who can accurately select the findings to be entered in a Google search all we need for a diagnosis to appear—as if by magic?”

Ten years ago librarians were all a-twitter about the fear that search engines (Yahoo! and Altavista were the big contendahs then) would displace librarians. Most librarians blustered it out: “Nothing can replace a librarian!” but there was definitely some anxiety in the ranks. Now physicians. Relax, docs. Librarians, doctors, and search engines, all will find their place in the brave new world of infinite search. And it’s important that consumers have access to as much information as possible to critically evaluate and assess all the other info streamed at us daily. For example, since the FDA has deemed it acceptable for drug companies to “inform” us about their wares via millions of dollars of direct-to-consumer advertising, consumers get barraged with info about commercial drugs provided by commercial for-profit entities. In that information environment, it’s vital for consumers to have consumer-directed diagnostic information to assess Big Pharma’s claims. Ultimately it will improve healthcare. What did you think all those consumer health awareness services were about if not, ultimately, this?

morning tea round-up

  • Yahoo!’s historically less-than-stellar track record of protecting user privacy is made much, much worse by this news: Yahoo! turned over a user’s identity information to the Chinese government, and now journalist Shi Tao has been sentenced to ten years for “e-mailing a government’s plan to restrict media coverage around the 15th anniversary of the Tiananmen Square massacre”. [SJ Merc 10/2 editorial; see also Xeni Jardin in the LAT 10/9; and Open Letter to Jerry Yang, Yahoo!, from Liu Xiaobo, 2005 Oct. 7. ] The Merc thinks it’s “hard to blame Yahoo!” for this but wants them to more aggressively lobby on behalf of human rights. Me, I don’t find it hard to “blame” Yahoo! for what they did. The individuals at Yahoo! who made the decision to hand over accurate information made a choice: company profits and business model over the freedom of a journalist. I guess they were just doing what they were told. [link from ping]

  • The Bush Admin. has never really had a sense of humor about parodies. The latest brouhaha is about The Onion’s use of the presidential seal. [cnn 10/26] White House spokesperson Trent Duffy:

    “When any official sign or seal is being used inappropriately the party is notified. … You cannot pick and choose where to enforce that rule. It’s important that the seal or any White House insignia not be used inappropriately.”

    The Onion editor-in-chief, Scott Dikkers:

    “I’ve been seeing the presidential seal used in comedy programs most of my life and to my knowledge none of them have been asked not to use it by the White House. … I would advise them to look for that other guy Osama … rather than comedians. I don’t think we pose much of a threat.”

  • George Takei - Live Queer and Prosper

    George Takei (“Mr.
    Sulu”) vamps it up.

    Mr. Sulu George Takei is gay! His new role in “Equus” apparently “inspire[d] him” to come out. I have to say, I am deeply gratified to finally have some queer representation on Star Trek. Although looking at this picture, it seems like the official coming out was, well, redundant. [Jason Schultz has a nice photo for Sulu fans, and SFGate 11/10 has a lot more details.]

    Between Mr. Sulu Takei and WNBA triple-MVP winner Sheryl Swoopes, National Coming Out Day came out a little late, but strong. [Women’s Hoops blog links to lots of Swoopes coverage.]

  • Research about five years ago showed that even as women athletes were setting records and breaking into new fields, sports photographers were increasingly minimizing and downplaying women’s athleticism. (Also at Women’s eNews. See also Womens Sports Foundation. That was in 2000, and a flurry of scholarship around that time evaluated that phenomena. A year or so later, the Smithsonian launched a traveling tour of sports photography of female athletes, Game Face (which I caught in DC at the time). Women’s ascendance in sports in the last five years has continued apace, and I wonder if there have been follow-up studies….

  • Chinese women bloggers are doing the sex blog thing. (This is at least the second or third such similar article on Asian women bloggers and sexuality that I’ve seen in the last year or so. News coverage about the Chinese government frowning or cracking down on this or that is fairly routine, I know. But I can’t help but wonder how much of the coverage is due to the starting! shocking! news that Asian women bloggers are blogging about sex, and how much of it is because white Western journalists are surprised to see such goings-on. Hey, I’m told that even in Boston, beans do it.)

  • Speaking of blogging, the NYT is trying to get “hip” to this newfangled “blogging” thing, and you can really see the results. In one article recently, the Times “jazzed up” their content with “hyperlinks”: the article included one link on the name of a state to NYT coverage about that state. And yesterday & today the coverage of the Scooter Libby resignation made me snigger with this bullet point: “Reactions: Bush. Cheney. Bloggers.” But I shouldn’t make fun, because the NYT also gave me a happy moment with its briefly-posted blurb for the Scooter Libby thing, which went something like this: “Scooter Libby indicted; steps down; Bush-Cheney no comment; Karl Rove not indicted.” The mere fact that Karl Rove’s non-indictment is news sends a warm glow all the way down to my toes, and I thank the NYT for that little moment of joy.

  • National science standards groups are registering their disapproval of Kansas’ new “science plus! religion” standards. Unfortunately, they’re using copyright to do so. [nyt 10/28]

  • The Washington Post trashes the E-Rate, the telecomm. tax-funded grant to schools & libraries for Internet access. [WPost 10/27]

google print: google’s evilness is beside the point (Bonus Rant Included)

I’m pleased to see the Google Print issue spurring discussion of the role of corporations in controlling access to information. See, e.g., today’s post @ Gnuosphere [link from sivacracy]

Gnuosphere, Siva, and others point out that Google isn’t doing Google Print out of the goodness of its heart; the company is scanning, indexing, and providing access to information for lots and lots of money. These warnings are a helpful antidote to Google worship.

But the problem with this complaint can be seen in the gnuosphere post:

Personally, I’m not against having an institution be granted the right to create such a database. But I’m wary about handing over such privilege and control to a body that is not working for the people. Should a corporation control what could potentially become the world’s first digital library? What is the purpose of a library? Why do libraries exist? For who do libraries exist? If this project is to become a globally accessible library, should there be someone controlling your right to read?

As the database of books increases in size and therefore scientific and cultural value, is an unregulated for-profit corporation the best choice to manage and control that database?

I think not.

The impulses guiding this post are clearly pro-public access and use, and pro-library, and I wholeheartedly support that. But the issue is couched as “handing over … control” of this information to a corporation. “[G]rant[ing] the right to create such a database.” Making a “choice” of entities to “manage and control” that database.

No, no, no.

The point of people’s support for Google Print is not that we support Google, love Google, or want Google to control our access to information. The point is that Google, and any other entity who wants to do it, should be able to add value to information. Google should not be THE ONE; Google should be ONE OF MANY. Picking and choosing a single entity presupposes that the information is already controlled, and this new use, this new added value, is to be carefully metered as a scarce resource.

We should be concerned about Google Print’s contractual restrictions on holders of its scanned works. But we should not fear Google simply for being the first entrant into the market. Google turns out to be evil? Implementing DRM, gathering and exploiting private personal data, indexing our DNA, imposing restrictive licensing agreements on its source material holders? Fine, criticize the evil practices (and Google too). Some other entity turns out to be evil, and wants to restrict copyright such that only Google’s database is valid? Criticize them, too. But I want to recommend that we resist the conflation of evils. If we’re concerned that Google is going to control a big huge really valuable database, and possibly to the detriment of those who want to use the database, then the answer is, in First Amendment terms, more speech. More databases, more indexers, more more more.

Bonus: Free Rant!

And by the way, you publishers, authors, and copyright-holders. You want to cash in on this market? Why don’t you consider selling the electronic texts to the aggregators and indexers for cheaper than they can scan them in and with reasonable licensing terms? There’s your market, right there. In fact, technology has made that market available to you for MORE THAN THIRTY YEARS. Dialog, Lexis, WestLaw, and other database vendors could have been using the full text of books for a really long time. Libraries would have killed to have full-text access to books.

As it happens, ignoring obvious markets is not new to the publishing industry. Book publishers ignored the market for enriched information content for years before they began ignoring the market for searchable full-text. Libraries and indexers could have used, at any time in the 20th century, a flourishing market for bibliographic and enriched descriptive information about books. Instead, with no such market, librarians CREATED, from scratch, and at very great expense, indexes and catalogs of information about books — with virtually no assistance from publishers. All those major research databases like MedLine, Agricola, and the like? Laboriously created by individual librarians, basically indexing and cataloging research journals by hand. Compare book publishers to research journal publishers. After some time research journal publishers figured out there was a market in enhanced information content, and began figuring out how to take advantage of that market. They facilitated the indexing process by including keywords and abstracts. They began selling tables of contents and journal indexes to the literature indexes. Ultimately they began selling full-text to databases and aggregators. In fact, once they figured it out, research publishers have been incredibly successful at capturing monetary value from information that the authors mostly want to give away for free. (So successful, in fact, that academic authors are having to fight their own publishers to get that valuable research information out of the market — another very interesting topic for another time.)

Could book publishers have done something similar? Sure. But for decades, literally, book publishers ignored this opportunity. As with research journals, individual librarians created the catalogs and indexes of books, hand-examining each book, figuring out what the book is about and how to describe it, etc. Libraries organized consortia and union catalogs to share this information and reduce the expense of creating it. For most of the time that cataloging took place, book publishers weren’t much help. Only in the very last few years have book publishers even begun to scratch the surface of providing enriched content to libraries and information vendors, by providing tables of contents to library systems vendors, and dipping their toes into very limited full-text databases that are scarcely available to anyone.

So the book publishing industry quaked in its boots and sat on its ass and ignored the market for searchable full-text, focusing solely on the market for information packaged as a physical artifact. And now the industry wants to complain that Google is jumping into the market? And doing it, not by licensing the full texts from the publishers, but in the most expedient fashion possible, by scanning? Please. Cry me a river, and while you’re at it, shed a few tears for the recording industry’s failure to jump online in the mid-90s.

essence of library

I like the flow of the google / library discussion: what’s the essence of library? and suspect I’ll be thinking about that one for a long time to come. (It sounds like a delightful perfume: a bit musty with an sweet undernote of decaying paper and an overnote of astringent preservative, maybe.)

Just picking out a few of the responses & adding a few more comments:

Michael Madison laid out a best-case defense for google based on google’s added-value of meta-information, and then termed the discussion: “is there an ‘essence’ of library?” And points out that we ought to focus “more what Google does than on what Google is“.

Siva Vaidhyanathan responded that Google doesn’t come close to the ‘essence of a library’.

This is the heart of the discussion that really intrigues me. Not because I truly am arguing that Google is a library, but because I suspect that the ways that information is being transmitted might start to render moot our current definitions of “library”. In my earlier post, I wasn’t really suggesting that Google take advantage of the warm feelings towards libraries; I doubt it would be a very helpful strategy, because most judges, like everyone else, would intuitively distinguish between the classical public library and Google. Rather, I was suggesting that library exceptionalism is only going to work so long as libraries are conceptually distinct.

Michael M then responded to Siva with some discussion of the essence of a library, ultimately concluding that we really have to talk about libraries in terms of information flows. And then he brings it back to Google:

Do we experience Google Print content as we experience other collections that we regard as libraries, or do we experience that content as we experience the Web — a functionally unlimited aggregation of data? Right now, the answer to that question has to rely on intuition and speculation. My money is on the second option, but in the end: who knows?

I’d like to suggest two basic functions for libraries: One is warehousing and archiving physical collections; serving effectively as a museum of information. The second function is providing information services. Storage, and access.

In the past and even today these two functions are, practically, inseparable. And each implicates a whole host of sub-functions many of which serve both masters — e.g., cataloging, which organizes the stored collections.

But these functions have been splitting and will continue to. Digitizing projects, like Google Print, will put the physical artifacts on the same plane with museum artifacts: nice if you’re a scholar and need the original, but for most people, the digitized content will suffice. [Google Print is not the only digitizing project, of course; there are plenty of others on smaller scales that have gotten less attention. I would be interested to get some examples of public-private partnerships because I suspect Google Print isn't the only one.]

As more of the information content becomes digital, the subfunctions used to service both the storage and access functions will shift. Two examples: cataloging and preservation. Electronic information needs much less in the way of cataloging; full-text searching obviates a lot of cataloging needs. (No, not all; I believe in subject headings and hierarchical thesauruses — although I’m not sure they’re ultimately scalable if we’re talking about organizing all information.) Digital media have their own preservation problems, fairly distinct from those relevant in most special collections. The central problem in preserving digital media collections is shifting formats; the central problem in preserving physical collections is preserving the original artifact.

So as these transitions within libraries move forward, the easy and obvious distinctions present today between libraries and Google Print will erode.

Now, Eric Goldman in a comment here said another of his maxims was never build a business on fair use. Google Print, of course, relies entirely on fair use (17 USC 107), so far as I can see. One way we might distinguish libraries at present is that most libraries, operating in the book-warehousing business today, rely not very much at all on fair use, and rather a lot on first sale (17 USC 109). Libraries vary with respect to the library exemptions in 108, which are used principally, so far as I know, to (a) establish reserves collections; and (b) make backups of software, videos, records, etc.

But the bedrock library provisions we rely on today, 108 and 109, won’t be enough for some collections that need to be built in the future. For instance, I don’t know what libraries are currently archiving popular digital ephemera (besides the Internet Archive). But just as libraries have begun to collect popular culture media in DVDs, CDs, comic books, and zines, so there will have to be archiving projects dedicated to archiving purely digital media, including digital media that are distributed for free via the web. I’m thinking of things like JibJab’s “This Land Is Our Land”, Mark Fiore’s shockwave commentaries, and similar such materials.

Let’s consider the Mark Fiore shockwave animated cartoons. [This is purely my example, because I love Mark Fiore; I have no idea if he has been approached by any libraries or what his response might have been.] The cartoons are distributed for free over the Internet; but they are not (so far as I know) licensed for free reproduction & distribution, and they author retains copyright. If a library wanted to begin collecting them, how would they analyze this collection & provision of access to it? 109 protects the rights of “the owner of a particular copy or phonorecord lawfully made under this title … to sell or otherwise dispose of the possession of that copy or phonorecord”. But “computer programs” are exempted. Are shockwave files “computer programs”? Maybe we have to resort, at last, to fair use. Now what do American Geophysical Union, Kelly v. Arriba, MP3.com, et al, tell us? Michael Madison talked about it, but I think it was summed up by Eric Goldman: “Don’t build a business on fair use … multi-factor tests lead to complete unpredictability.”

This is obviously not a fullbore analysis of the relevant provisions as applied to publicly distributed shockwave files, but it does make my point: digital media and new ways of distributing content are already troubling the current copyright categories that are designed around brick-and-mortar libraries and physical artifacts.

And that’s just one example looking at only one aspect of the question of collecting & providing access to Mark Fiore shockwave animations. Consider the reams of problems that digital media pose in the realm of licensing, DRM, and DMCA-type technical protection measures, notwithstanding the protections allegedly offered by 109, 108, and the 1201(d). (Is there any point in even citing to 1201(c)? I feel it’s been effectively read out of the statute the same way, and perhaps for similar reasons, the 9th Amendment to the Constitution has been politely ignored.)

Libraries qua libraries — well, libraries qua public and academic libraries, anyway — will always have recourse to Congress, and I predict they will prove as popular there in the future as they have in the past: not popular enough to sway Congress from granting very broad rights to copyright holders that end up hurting libraries, but popular enough to get some limited library-specific protections.

But most librarians, myself included, want to preserve BOTH today’s model of the library: the brick-and-mortar warehouse-and-cataloger-of-physical-media (which I do think will always be around) — AND the idea of the library: the collector and provider of information. So the question is, how, or why, do we copyfighters / librarians / information activists / legal scholars distinguish Google Print in a way that doesn’t hurt Essence of Library down the line? And why, tactically, should we? Maybe, we should focus on building a more robust fair use, fixing 109 so it works with digital media, or even adding in more 108 exemptions. Or maybe on the DMCA Library of Congress anticircumvention comment rounds that are coming up again.

Further reading on this discussion at copy this blog and copy this blog again. copyfight is following the debate and a number of people are commenting: See google print is as google print does and google print library shoulda coulda woulda. More from “real librarians” and others responding on Siva’s blog: Eileen Snyder, 8/17; Siva responding to Michael Madison, and including comments from other folks too.

I’d like to link to some good discussions on 109 (I seem to recall Derek Slater recently talked about 109 and digital music files, for instance, but can’t find his post — is there a search function I’m missing? Derek?) but will need to do some more digging … later.


As I write I follow one of those social sciences rules about mobs or group discussions or something: I make myself more firm in my opinions the longer I write. This is why it would be much better if I had time to write a long post, then sit on it for a while — my tone could be measured & even the whole way through. But I was already delayed in responding, so wanted to get some thoughts out in a hurry.

update 8/18: a few last posts on this discussion: madisonian.net 8/17; siva 8/18 and siva again 8/18;

siva also posted about an aspect of this issue which i didn’t really touch at all in this discussion, which is the trustworthiness of private actors in general and google in particular. my interest was piqued by the essence-of-library question, but this was a significant thread in comments & subtexts in various discussions. See siva 8/17; copy this blog (previously cited) linked to a post & comment discussion of the google / library contract on the library law blog; and seth finkelstein wrote about what’s in it for google.

update 9/1: the best response to it all came from the onion: Google Announces Plan To Destroy All Information It Can’t Index …

The new project, dubbed Google Purge…. The company’s new directive may explain its recent acquisition of Celera Genomics, the company that mapped the human genome, and its buildup of a vast army of laser-equipped robots. ‘Google finally has what it needs to catalog the DNA of every organism on Earth,’ said analyst Imran Kahn of J.P. Morgan Chase. ‘Of course, some people might not want their DNA indexed. Hence, the robot army. It’s crazy, it’s brilliant—typical Google.’ … ‘This announcement is a red flag,’ said Daniel Brandt, founder of Google-Watch.org. ‘I certainly don’t want to accuse of them having bad intentions. But this campaign of destruction and genocide raises some potential privacy concerns.’

related posts: interesting reading early saturday morning 8/13google & not-for-profit libraries 8/13

google & not-for-profit libraries

More on Google and Siva’s response (and my responses to Siva):

Recap: In response to publisher anxieties & thinly-veiled threats of litigation, Google is implementing an opt-out provision in its scan-copyrighted-library-books program, and delaying scans of copyrighted books until November. [google blog] This has been widely reported as Google backing down. See, e.g., “Chilled by Publishers” (BoingBoing), “Google Sells Out Users” (Copyfight).

Siva Vaidhyanathan had a different take, predicated largely (it seems to me) on the fact that Google is a for-profit corporation. For once, I disagree with Siva, and on two grounds: both with library exceptionalism in this instance and the take on American Geophysical Union. Siva:

Google did not have the right to make wholesale copies of millions of copyrighted books without permission from the copyright holders. Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.

If copyright is to mean anything at all, then corporations may not copy entire works that they have never purchased without permission for commercial gain.

Usually I agree (not slavishly. who said slavishly?) with everything Siva (and his minions on Sivacracy) has to say, but I have to disagree with him here on a couple of points.

First, the for-profit corporation issue. Yes, Google is a for-profit corporation, and while they try not to be evil, one could argue that they won’t be able to help it. Siva wishes that libraries would take greater advantage of fair use, and so do I — libraries are wonderful and should be able to do anything they want including lots of things they don’t do now (like, yeah, scan in everything they own). But I take issue with this form of library exceptionalism. Libraries should push fair use in the service and interests of their users, history, and humanity. But libraries are not the sole beneficiaries of fair use, nor should they be. For-profit corporations, not-for-profit corporations, heck, even tax-exempt religions — all should be able to exercise fair use broadly.

Well, Siva says Google is not a library. It’s true that Google is not the mom-and-apple-pie ALA version of a downtown library, complete with modern atrium and skylights for Mayoral gatherings. But I think we have to push on “library” for a bit. The Internet Archive is certainly a library. My home collection is certainly a library. (It even circulates, and I have remote storage, and I recently began a belated investment in DVDs.) Libraries may be private, semi-private, public; for- or not-for-profit; paper or digital. Why is Google not a library?

And tactically speaking, it just doesn’t make sense for information activists / copyfighters to start downwardly limiting various users’ sets of rights. Ultimately, this will come back to bite us: what if libraries start to look more like corporations? In fact, library exceptionalism has not served the library community well: Despite numerous statutory exemptions for libraries, librarians have still retreated into deep conservatism and fear of copyright liability. Librarians realize that the laws governing information transmission are porous, and the laws that apply to for-profit corporations will also affect not-for-profit libraries.

Second, Siva cites American Geophysical Union, 60 F.3d 913 (2d Cir. 1994), very quickly in support of his point that “Google’s original plan fails every possible fair use test ever tried. See, for example, American Geophysical Union v. Texaco.”

AGU is not the law of the land, much less every possible fair use test ever tried. While influential, AGU is the law of the 2nd Circuit. (Not the Fifth, although my brain always short-circuits me there, linking “Texaco” to “Texas/5th Circuit”.) I like to remember that fair use is a fact-based, multi-factor analysis. Paraphrasing one of my copyright professors, multi-factor tests = completely unpredictable results. Each and every case looks quite different and yes, different caselaw applies. There’s a limit to how far you can draw even an influential appellate precedent, as the p2p cases show.

Unfortunately, Siva and everyone else likes to just drop-cite AGU: It was a broad decision that, famously, stands for the idea that potential licensing revenue counts as an (apparently significant) effect on the market. That’s scary, and big, and consequently the decision weighs heavily in the set of bad anti-fair-use opinions. But over-reading it has led to significant nail-biting in the library community. I do agree with Siva that it’s important to remember that AGU took place in a for-profit environment; in fact, I’ve argued that not-for-profit libraries & archives have a lot less to worry about than they think they do from AGU. But the for-profit/not-for-profit status is not the be-all and end-all of the story. AGU demonstrates a sophisticated relationship between the various fair use factors. The potential licensing revenue was significant in large part because of the for-profit status. That means that it’s not the horror story that librarians sometimes fear, but it also means that you can’t take the fair use factors as a simplistic checklist: for-profit or non-profit? market effect (including lost licensing) or no market effect? It doesn’t work that way. The market that is considered is necessarily shaped by the environment in which the alleged infringement took place. Texaco was a for-profit corporation with the resources to do licensing. Librarians have been scared because the lost-licensing-revenue aspect looks even more insane in a public or academic library context than it did in Texaco’s internal special library, routing & private desk copy context. But that particular horror has never fully paraded itself, probably because the outcome is so insane outside of the particular circumstances of Texaco. Context is everything.

And, again thinking tactically, I would argue we ought to work to limit the reactionary conservatism this case fosters, rather than trying to puff it up even more. By drop-citing AGU in the service of anti-corporate use of information, Siva made the copyright maximalists’ case. And that’s not good for libraries or Google.


A little aside: Derek Slater disagrees with Siva on AGU, too, from a different angle. Derek points out that the Appellate Court found “undue emphasis” on commerciality in the District Court’s opinion. Derek’s point is well-taken, but I still read the commercial context as significant. Between the District Court & the Appellate Court opinions, the Supreme Court issued Campbell, which expressly reversed any presumption that for-profit uses were not fair. The Appellate Court wanted to uphold the lower court’s ruling, but had to deal with Campbell; hence the nod to Campbell. But the Appellate Court was really pointing out that Texaco’s use was still a traditional library use, even if in a for-profit environment.

We do not mean to suggest that the District Court overlooked these principles; in fact, the Court discussed them insightfully, see 802 F. Supp. at 12-13. Rather, our concern here is that the Court let the for-profit nature of Texaco’s activity weigh against Texaco without differentiating between a direct commercial use and the more indirect relation to commercial activity that occurred here. Texaco was not gaining direct or immediate commercial advantage from the photocopying at issue in this case – i.e., Texaco’s profits, revenues, and overall commercial performance were not tied to its making copies of eight Catalysis articles for Chickering. Cf. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F. Supp. 1522 (S.D.N.Y. 1991) (revenues of reprographic business stemmed directly from selling unauthorized photocopies of copyrighted books). Rather, Texaco’s photocopying served, at most, to facilitate Chickering’s research, which in turn might have led to the development of new products and technology that could have improved Texaco’s commercial performance. Texaco’s photocopying is more appropriately labeled an “intermediate use.” See Sega Enterprises, 977 F.2d at 1522-23 (labeling secondary use “intermediate” and finding first factor in favor of for-profit company, even though ultimate purpose of copying was to develop competing commercial product, because immediate purpose of copying computer code was to study idea contained within computer program).

[38] We do not consider Texaco’s status as a for-profit company irrelevant to the fair use analysis.

The Appellate Court then goes on to talk about the value to the user of the allegedly infringing activity. This discussion is critical, because it sets up the fourth factor discussion about the lost revenues.

As a pragmatic reading, I see this tweaking of analysis as a way for the Appellate Court to deal with Campbell. In its effect, the case has been bad; it has, as I’ve stated, been an oft-cited case when librarians are playing conservative. In its reasoning, the case is also bad: the potential-lost-revenue argument is virtually boundless. But my sense is that the potential-lost-revenue argument, although terrible, has not yet fulfilled its potential — maybe because it is so boundless.

In short, I think American Geophysical Union is over-rated, and the commercial context is critical.

… a bit more coming later hopefully

update 8/14: The massive amounts of media coverage given to the Google withdrawal confirm my opinion that tactically this sucks, for libraries, authors, readers and anybody else who actually uses copyrights. So much of this coverage is described as a copyright flap, Google’s copyright misstep, etc. The bounds of fair use have just shrunk in the court of public opinion, and that’s a much longer-lasting loss than American Geophysical Union, Napster or any other case.

update 8/15: See, this is why I like Siva so well: I wish I had time today to respond to all of the good comments zooming around the blogosphere and e-mail. …. They are all helping me formulate my arguments better. I can’t help but compare favorably this response to certain other thread-baiting that’s happening on a nearby (non-IP-related) blog. And I know Siva will eventually come up with some very cogent ideas on this issue that will make me go hmm.

Related posts: interesting reading early saturday morning 8/13essence of library, 8/17

old works, new copyrights

  • Sony is claiming copyright over “Zorro” and has sent a C&D to Sobini Films, which is wanting to produce a movie set in the future (well, 2010 – barely the future any more!) about Zorro. Johnston McCulley first introduced Zorro in 1919 in The Curse of Capistrano. The BBC article states it thusly: “Sobini contends it acquired the rights to Johnston McCulley’s book The Curse of Capistrano…” “Acquired the rights”? It’s a public domain work! BBC
  • OK, this news is from May, but for some reason I just saw it now. A copyright is being claimed on a formerly unknown work by Vivaldi that recently turned up in an archive. Let us remember that Vivaldi died in the 1700s. The opera (“Motezuma”) was found in a German library collection. I can only assume the library is claiming that it was never published and copyright didn’t attach to it?

    Imagine if libraries get to own copyrights on things out of their special collections. The resulting treasure hunt will certainly encourage library administrators to put more money into cataloging the special collections departments. On the other hand, what heirs of famous artists and authors will want to donate works that might yet turn out to be profitable for their great-great-great-great-great-several-times-over-grandchildren?

    I’m inspired to look into the question of copyright of archived unpublished materials. But off the top of my head, I would suggest that a work being made publicly available in a library collection ought to constitute publication. So, whenever the Vivaldi collection was initially made public, copyright on otherwise-unpublished works begins tolling. The libraries that hold works in their collections will profit as museums do now, from controlling access to the original and licensing reproductions.

    Granted, that surely won’t be as satisfying for the holder of the original copy of a composition or literary work, compared with, say, a painting or sketch. In compositions and literary works, the copyrightable expression is all carried by symbolic languages, which are easily replicable. Collectors will still attach value to the original, but the value of the work will flow with the symbolic languages.

    With a painting or sketch, on the other hand, more of the value flows with the original work. The work is not reducable into an easily transcribed symbolic language — it can only be distributed by photographic reproductions of the exact work. And even then, the artist’s expression can only be partially captured by two-dimensional photographic reproductions: The original ink and paper were artistic choices, and brush strokes include three-dimensional information that is not easily captured by photographs.

    So the papers of famous scholars and artists are not going to be quite the boon for libraries that holdings of museums are. That’s the trade-off of being an archive rather than a museum, IMO. An archive gets a lot of stuff that you haven’t yet had time to classify (less often the case than in a museum), but it’s not as often the kind of stuff that might make your institution a fortune.

Et tu, Louisiana?

Not content with their shared top-ten ranking in teen births, Louisiana State Rep. A. G. Crowe (R-Slidell) wants Louisiana to join with Oklahoma and Alabama in segregating (or banning) gay books.

Good for you, Rep. Crowe. You tackle those problems that Louisiana is facing (high cancer mortality rates, high teen pregnancy rate, low education rates, high infant mortality rate) by, umm, micro-managing library collections. Let me know how that works out.

some observations about library architecture

The 10th anniversary of SF MOMA prompted an article in SFGate today [1/13] about MOMA’s architectural values, functionality as an art museum, and fitness into the SOMA neighborhood. I particularly liked the opening observation:

A big problem with architectural criticism is that buildings often are treated as if they are inert works of art, sculptures on a grand scale. The day they’re unveiled is the day they’re best judged.

In fact, even the most meticulous creation is a work in progress that reveals itself over time and is defined in part by its surroundings[.]

This is a common problem with library architectural projects, which too often result in designs of grand buildings that are architectural plums, but are not well-suited for their function as a library. The designers and library committees treat the library building as an inert work of art rather than as a functional building. They do beautifully on opening day and arouse many oohs and ahhs but over time the staff and patrons are forced to live with and adapt to features that are essentially library-unfriendly.

For instance, my pet peeve in modern library architecture is the giant atrium. So many public libraries do as SF Public Library (late 90s) has done — create a large atrium running up & down the center of the building. They make a lovely space for civic entertainments but the big open space is not functional for a library — not for creating reading / study space, not for archiving books, not for providing access to information. It wastes energy, creates a draft, carries sound, and while it’s entertaining sometimes for people on the top floors to people-watch, it invariably renders the first floor under the atrium inhospitable and useful only as a passageway. Huntsville, Alabama’s public library (mid-80s) did likewise, but in a smaller library the sins are proportionally more minor. Chicago Public Library‘s giant new downtown main branch (early 90s) managed to take the cold feel of the atrium and extend it even to its non-atrium spaces.

The SF MOMA article author, John King, also rants about SF MOMA’s atrium. I’m even more uninformed about museum architecture criticism than library architecture criticism — I’m not even a Power User of museums — but it seems to me that while the functionality of the museum as warehouse-for-art [or whatever] might pose a similar problem, the overall function of the museum as an artpiece in itself might make the atrium more justifiable in the museum context than in the library context. This is not to say that libraries shouldn’t be works of art in themselves; they should; but the art should flow with the functionality, not against it. It may be that atria in art museums flows with that functionality in a way that it doesn’t flow with the functionality of libraries.

Some cities of course get their library architecture right. Berkeley Public Library (Berkeley, CA) rehabbed its downtown library, retaining the lovely exterior. There is an atrium, but for only three floors, it’s tolerable, and better done than San Francisco, still allowing the library to retain some warmth. [Berkeley Public also has one of my favorite branch libraries, the North Branch, which has an exceptionally warm and friendly design.]

Boston Public Library married its beautiful, historic old facility to a modern new facility (90s?). While the new facility isn’t beautiful,* and has, yes, the dreaded atrium, the BPL atrium is reasonably functional, or at least, minimally disruptive. The atrium itself is relatively small. And in a city like Boston, the front area/entryway necessarily becomes a passageway rather than a habitable space, because of the drafts and chills thru much of the year. So the passage-ness of the space is less wasteful than it might otherwise be. More importantly, by coupling the old facility with the new facility, BPL managed to marry form to function. The old library now contains reading rooms and research and reference collections. You can appreciate the historical architecture and design elements while working at the slower pace that the functions designate. On the other hand, the new addition contains the higher-traffic programs — the circulating collections and the lively programs (children’s, literacy, friends of the library). On a minor technical note, BPL didn’t succeed in matching floor heights between the old and new sections — hardly any project does — but it’s certainly not as bad as at some libraries I’ve often used [University of Kentucky main library in the early 1990s; University of Berkeley, Boalt Hall School of Law, Library in the early 2000s, with its North Addition].

The new Seattle Public Library (2004), from what I’ve heard, has some interesting features that attempt to break new ground in librariness — for instance, the book stacks on the inclining ramps. Over time we’ll see how library/user-friendly and workable these features really are.


* I may just be prejudiced against 20th century architecture, which is just so extraordinarily bleak and geometric and barren of fun design elements. The designers did a few nice things — I like the curvey arches at the entrance, and while it’s a bit warehouse-like, it’s an elegant warehouse. Some photos.