The legal adage that hard cases make bad law apparently has deep roots in English common law, and it was cited in a Supreme Court decision by no less a Justice than Oliver Wendell Holmes, Jr. Its applicability has been disputed over the years, but in recent weeks we have seen the truth of the maxim illustrated in some copyright debates. Colleagues have recently sent me two different stories where the extremes of copyright law are in play—hard cases, I suppose. Both offer confirmation that when the facts are really well outside the realm of normal expectations, people can draw very bad legal conclusions. But both also offer opportunities to remind ourselves of fundamental truths about law, journalism, and copyright.
Looking back, the irony is so heavy-handed that it seems contrived. As my colleagues and I were preparing for our MOOC on Copyright for Educators and Librarians, which launched for the first time last week, the only resource that we wanted to use but could not successfully negotiate the permission for was Susan Bielstein’s book about negotiating permissions. It would have been great for us and, I am convinced, for the Press if we could have offered a single chapter of it for our over 8,000 MOOC participants to read. In the event, however, we rediscovered the fear and lack of sound business sense that grips the publishing industry, but also discovered the richness of the free resources that were available to us.
The business of university press monograph publishing has always been madness, and changing conditions have made it even less sensible than it was. Yet any suggestion that there should be fewer university presses or that they should refocus their missions is greeted with shouts of dismay that are usually reserved for heretics and anarchists. Maybe we should remember that oft-quoted definition of madness—doing the same thing over and over while expecting different results.
The library community has been talking about a “journal pricing crisis” for over two decades. What we have not seen so far is any kind of concerted effort to break through this cycle. But two growing movements—the push toward open access and the growth of library publishing programs—make me think that we may be reaching a tipping point. In a white paper released last month, library administrators Rebecca R. Kennison and Lisa R. Norberg describe the need for “deep structural changes” in the systems through which scholarship is created and communicated. I honestly do not know if their proposal is the one that will trigger these changes, but I know that they are pointing us in the right direction.
Everyone who teaches copyright uses the same metaphor, I think. Copyright is a “bundle of sticks.” A property owner is said to have a bundle, where each “stick” represents an exclusive right. I had not really thought deeply about this metaphor until it was raised at a conference I attended whose theme was what a new copyright law might look like. There was a lot of talk about the problems with the current law. Until then it had not occurred to me that one of those problems was the bundle of rights itself.
Gibberish is defined by Merriam-Webster as “foolish, confused, or meaningless words,” and the example sentences that are given suggest that gibberish is produced by people who are overexcited or unconscious. But it turns out that computers can also write gibberish, if they are programmed to do so, as we all found out when it was announced that publishers Springer and IEEE were withdrawing 120 papers they had published because they were found to be such computer-generated gibberish.
Nature has built in two important responses for human beings and other animals facing danger, which psychologists call the fight and the flight reflexes. Depending on the nature of the threat, either choice might be sensible in a specific context. This all came to mind during a conversation a couple of weeks ago with Chris Bourg, the Associate University Librarian for Public Services at Stanford. She spoke to Duke’s Seminar on the Research Library about the threat to libraries from neoliberal thinking in higher education. Chris’ talk was very interesting and challenging. I am not sure I entirely agree with her. But the part of the conversation I want to focus on is how librarians respond to a sense of crisis in our profession.
A great deal of my professional life is spent trying to make a body of law from the analog age, the 1976 Copyright Act, fit into the digital world. It is a difficult task, but today I want to discuss a different body of law from the same era—the Family Educational Rights and Privacy Act of 1974 (FERPA), aka the Buckley amendment—and how it can fit with the new activities we are engaged in in the online age.
This year, several announcements and blog posts combined to focus my attention on a slightly different question. What problems can open access solve? The answer seems obvious; open access will solve the problem of highly restricted and limited access to scholarship. A somewhat different problem that OA can help solve is the problem of scholarship locked up in the hands of badly run businesses that have come to believe that their inefficient and ineffective ways of doing business must be preserved at all costs.
Black Elk Speaks has been published by three different publishers in the U.S. The rarity that this movement creates is the availability of different editions of the book from different publishers. That is, there is a semblance of competition in the publishing of Black Elk Speaks. This anomaly brings into relief the normal effects of the copyright monopoly. It offers an opportunity to reflect on what alternatives to the strict publishing monopoly might look like.