Changes to platforms we use regularly are always slightly traumatic, as we invariably discover when we roll out a new library website and the complaints begin, or we find out a database interface has changed radically the day we’re introducing it to students. Platform changes are even more distressing when they are sites to which we contribute content. By creating social circles and sharing information on websites, we often forget they belong to other people who have values and motivations different from ours.
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.
The animated television show South Park made a business of touching nerves, but even its creators reportedly did not expect the furor that roared forth over their Underpants Gnomes episode satirizing common workplace beliefs and practices. The Underpants Gnomes’ business plan lives on (slightly altered) in web culture as a shorthand for inadequate, failure-prone product or service planning. I spent my entire library career wallowing in Step 2.
In late June, a minor brouhaha erupted when the library at the University of Arkansas suspended reporters from the Washington Free Beacon, an online newspaper, from using its special collections. The reason given by library administrators was that on multiple occasions the newspaper’s reporters had published content from those collections without asking permission, as library policy requires. Much has been made in the right-wing press about the politics supposedly surrounding this conflict. I want to focus on a different issue: the practice of making patrons request library permission before republishing content drawn from documents in our special collections.
Last year, Walt Crawford self-published a book entitled The Big Deal and the Damage Done (which I wrote about here). In it, he analyzed statistics for academic library budgets and showed that Big Deals for serials were gradually taking over many library budgets as serial expenditures rose significantly more than inflation and the inflexibility of the subscription packages led libraries to cut expenditures for books and other materials. This year, Crawford published a revised and expanded report on the topic as the May/June volume of the ALA Library Technology Reports: “Big-Deal Serial Purchasing: Tracking the Damage,” in which he analyzes the “Academic Library Data Files” from the U.S. Department of Education’s National Center for Education Statistics.
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.
Last month I enjoyed the distinct privilege of keynoting the Conference for Law School Computing (also known as “CALIcon”), a gathering of legal educators, law librarians, and IT professionals in law put together by the Center for Computer-Assisted Legal Instruction (CALI). I can’t say enough in praise of the ever-present spirit of sly spirited fun at this conference.
In response to my column a few months ago on ebooks and the demise of ILL, I received a depressing email from an independent scholar noting the numerous obstacles he faces because of the increasing restrictions on access to ejournals and now ebooks. He wrote that he lives near a major public university in the southeast and has been using the university library for years. Despite being publicly funded (at least as much as any state university is publicly funded these days), the library has restricted access to all the databases only to university affiliates with IDs, which means most of the journals are inaccessible to guests. And with the increasing licensing of ebooks, more and more books are inaccessible as well.