Is this how the GSU e-reserves lawsuit finally ends? At first glance, publishers scored a legal victory this week when they won a second appeal in their decade-long lawsuit against Georgia State University over its online course readings, known as e-reserves. Which makes this a good time to declare victory, and settle the case.
Despite the unanimous decision handed down on October 19, the muted response from the Association of American Publishers (which is supporting the case with the Copyright Clearance Center) suggests just how little there is for publishers to celebrate in the surprisingly slim 25-page ruling, which kicks the case back to Judge Orinda Evans for a third try at a decision. And perhaps the most significant part of the 11th Circuit’s decision last week actually went against the publishers: the appeals court affirmed Evans’ decision not to reopen the record in the case.
That part of the ruling means that Evans will once again be ruling on the same evidence she has already twice found largely supports a finding of fair use. I think it's safe to infer this much from Evans' first two rulings: she believes GSU’s copying in this case should be protected by fair use. Does anyone on the publisher side of the case think it advisable to give her another crack at this?
Ever since GSU changed its e-reserves policies and won a protective order in the case, back in 2009, the litigation, to quote Cornell law professor James Grimmelmann, has been “a barely mitigated disaster” for the publishers. And after a decade of costly and contentious litigation, Friday’s ruling suggests there isn't much left for the publishers to salvage in court.
In a post on the blog In the Open, Kevin Smith, Dean of Libraries at the University of Kansas, who has followed the case closely from the beginning, I think gets it right:
“…The big principles that the publishers were trying to gain are all lost. There will be no sweeping injunction, nor any broad assertion that e-reserves always require a license. The library community will still have learned that non-profit educational use is favored under the first fair use factor even when that use is not transformative. The best the publisher plaintiffs can hope for is a split decision, and maybe the chance to avoid paying GSU’s costs...”
Further, Smith notes, a lot has changed over the last 10 years, making the case less and less relevant.
"Library practices have evolved during that time, and publishing models have changed. Open access and the movement toward OERs have had a profound impact on the way course materials are provided to students. So the impact of this case, and of any final decision, if one ever comes, will be negligible."
Does an E-book Battle Loom for Libraries in 2019?
As 2018 enters its final months, it looks like e-books will be a significant issue for libraries in 2019. After years of relative calm in the market, during which time the ALA's Digital Content Working Group was allowed to sunset out of existence, it appears some of the modest gains libraries made years ago are now in danger of being lost. This week we have two quick updates:
First, Macmillan officials did get back to us regarding CEO John Sargent's recent comments at the Frankfurt Book Fair on the Tor embargo on new e-book titles in libraries. Per Sargent's comments citing "a three month testing period," a spokesperson said the CEO was referring to three more months of testing. "We should have data and analysis to evaluate our e-lending program by year end." The embargo began on July 1.
As for Sargent's claim of "a corresponding—almost 1 for 1—growth in library reads that goes along with the decrease in the sale of e-books," the spokesperson offered this: "We are seeing unit growth of e-book reads at libraries at the same time that we are seeing a like decline in the retail sales of e-books at Macmillan. The test is to try to determine what, if any, correlation there is between the two."
Meanwhile, on another front, e-book prices for Penguin Random House titles continue to come down following the publisher's recent model switch, as information updates in vendor systems. Michael Blackwell offers an update at ReadersFirst. But it is also clear, Blackwell, notes, that librarians are not satisfied with the change. "PRH, we appreciate you engaging in a conversation with libraries. Please keep the door open," writes Blackwell. "What we need, again, is OPTIONS! Work with us. Pilot at least a perpetual one user/one copy and a metered 52 circ model on all titles. We can talk price options. If we can use PRH efficiently, libraries will buy more from you. Our collections, and your bottom line, will benefit."
Reserve Reading
This week was International Open Access Week. American Libraries looks at open access "by the numbers."
And via Gary Price at InfoDocket, a look at the numbers from PubMed Central.
In Publishers Weekly, a look at how publishers are approaching Plan S, the ambitious commitment by a group of European research funders to require open access by 2020.
In the Pacific Standard, Information Scientist Alison Head, a co-author of a new report on the media habits of almost 6,000 college students, "explains why news consumption has become an arduous task for younger generations."
The New York Times reports on the Library of Congress's National Screening Room, which offers a host of films available to stream for free. "The videos cover the period from 1890 through 1999, capturing a broad range of American life. Notable films include home movies by the songwriters George and Ira Gershwin; issues of the “All-American News,” a newsreel intended for black audiences in the mid-20th century; and a selection of instructional films about mental health from the 1950s."
Gizmodo reports that the U.S. Copyright Office, with approval from the Librarian of Congress, issued new rules this week that make it legal to hack the DRM of any lawfully acquired device "as long as the intent is to the diagnose, maintain or repair the device, “and is not accomplished for the purpose of gaining access to other copyrighted works.”
Over at The Atlantic, a report on a new lawsuit alleging that Facebook "egregiously overstated the success of videos posted to its social network for years," and how that "chaotic" push into video cost hundreds of writers their jobs.
Also from The Atlantic, a photo essay of amazing libraries. I'm sorry, but these never get old...
From The Verge, a report on Tim Cook's speech "denouncing the current state of data collection and targeted misinformation" and voicing support for tighter privacy laws in the U.S. not unlike Europe’s GDPR.
The Association of American University Professors supports the "academic freedom" of librarians. "Faculty status entails for librarians the same rights and responsibilities as for other members of the faculty," the statement says. It comes as the University of California administrators are in a tough contract negotiation with librarians, in which the administration has reportedly rejected language that would acknowledge librarians' right to academic freedom.
Librarians save lives, literally. And from Time, a sign of the times: Narcan, which combats opioid overdoses, is now being made freely available to libraries.
Drag Queen Storytime has been a fun, growing program for libraries across the nation, and a way to teach tolerance and acceptance. But a group in Houston has filed suit against the library, saying the program is unconstitutional. One of the plaintiffs told local affiliate KHOU-11 the program is illegal because it "promotes secular humanism." OK, pretty sure there is copy of the Constitution in the library, someone might want to break it out...
