Jeff Cunard, Partner, Debovoise & Plimpton

Guy Pessach, Lecturer, Faculty of Law, Hebrew University of Jerusalem

Frank Pasquale, Visiting Professor of Law, Yale Law School

Brewster Kahle, Digital librarian and co-founder of the Internet Archive

Several of the panelists address the proposed Google Books Search settlement as part of their remarks. Commentary on the proposed settlement can be found in today’s New York Times.

A more detailed commentary can be found in this article by former Yale ISP resident fellow James Grimmelmann, now teaching at New York Law School. You can access PDFs of the settlement documents at this site. The full-length settlement draft is 134 pages (without attachments), but the 32-page Notice to Authors (Attachment I) provides a fairly detailed summary.

Jeff Cunard, counsel to the Publishers subclass in the Google Book Search (GBS) litigation and settlement:

From the standpoint of the authors and publishers, there is enthusiastic support of the settlement. The GBS cases were brought because Google was scanning millions of books from libraries and displaying snippets of those books without express permission from the copyright holders. Google claimed that this was a fair use under the Copyright Act; authors and publishers disagreed. Libraries were not sued by the authors or publishers.

The authors and publishers objected to the idea that Google could copy first without obtaining permission. They thought Google should have asked for permission before scanning and displaying books. Google said its action was lawful, and that pursuing a massive scanning project like this makes it impossible to get the permission of every person who holds a copyright to the material.

The question at issue was whether digitization and the display of a snippet of a book was a fair use. The two sides disagreed, and this question ultimately won’t be answered in the GBS case, because the parties reached a settlement, coming to the conclusion that a better, broader deal could be struck in a settlement.

Why did the authors and publishers decide to settle?

1. It’s a way of allowing readers in the US to access whole books in a meaningful way. Snippets can be frustrating, and the settlement will be particularly useful to making out-of-print books accessible. The terms of the settlement set different defaults for in-print and out-of-print books. Out-of-print books can be displayed to differing degrees based on various pay schemes and rightsholder permission. The default for in-print books is no-display, unless the rightsholder authorizes it. This will help to breathing new commercial life into out-of-print books

2. The settlement provides a comprehensive rights authorization scheme through class action. It Would be very difficult to get rights authorization from this large a body of rights holders in any way other than a class action settlement.

3. The settlement provides new revenue models for making these books available. Consumers can purchase accesss to a book online from any computer connected to the internet in the US. Google will make available institituaionl subscriptions, where research institutions can buy a subscritption to the entire digital corpus. Rightsholders can derive ad-based revenues, and in the future, may be able to permit print-on-demand and downloadable PDF services. All revenue is split 67% to the rightsholders, 33% to Google.

The settlement establishes the Book Rights Registry. Similar to the ASCAP and BMI rights registries, in that it serves to distribute earned revenues to rightsholders.

Libraries get digital copy of books that they provide for digitization. Libraries were represented by a lawyer in the settlement discussions, and the settlement has provisions about what a library is allowed to do. The settlement reflects a series of rights and obligations regarding what a library can and can’t do with its Library Digital Copy. They can make it available for non-consumptive research, enhanced access for people with disabilities, and classroom and research uses.

In sum: The settlement will allow readers in the United States to find access to and read millions and millions of books. The publishers subclass is very enthusiastic about the settlement and looks forward to it being approved by the court.

Guy Pessach:

Discussing digital archives in Europe, which are different from the commercial and privatized scheme presented in the GBS settlement. In Europe, there is more focus on public provision of digitization and cultural preservation.

Example: The Digital Images Collection of the Victoria and Albert Museum in London. The collection may be used for personal and educational uses, with no permission or royalties required.

Example: The Europeana project, a search platform that directs searchers to European books and artworks from more than 1000 participating institutions. Each institution holds its content separately, and the databases are linked through the Europeana search engine. Users must respond to the rights claims of both the original copyright holders and the Europeana search platform.

Concerns with the European system: European copyright law recognizes a copyright in most kinds of databases. Digital images of public domain materials may be recognized as protected by copyright. And only certified cultural institutions can be included in the Europeana platform.

Moving toward legal policy in EU, the reform proposals presented are insititutional licensing schemes between institutions, not legislative reform.

The difference in the approaches to digital collections between the US and Europe is similar to what happened with radio and tv: Europe goes public, US goes private, but both concentrate around licensing regimes that replace legal frameworks and block any hope of legal reforms. This places incredibly high barriers to entry for any entity that isn’t the dominant licensee (Google or the EU), and allows the dominant players to leverage copyright law.

Concerns: digital archives have major social roles to play; they shape our views, ideologies, and perceptions. In the history of media regulation, we can see that a concentrated map of public or private archives doesn’t follow goals of democratic culture. We need a more hybrid system that allows mulitple forms of digital collections.

The comprehensiveness of GBS is double-edged sword: desirable but also dangerous for cultural preservation if it leads us to ignore or foreclose other options.

Where do we go from here?
Possibility of copyright reforms (such as compulsory licensing, broader interpretations of fair use, digital deposit requirements) probably won’t be pursued.

Another option: Pursue new directions to incorporate free speech theory into the evaluation of the settlement agreement. We need to think of free speech not in the contemporary way, but from the Internet perspective. This should come up as main consideration in digital preservation debates, thinking about the rights of future generations to be exposed to a diverse range of materials and opinions of the past, as well as the right of contemporary speakers to have their imprint on history.

— Q&A —
Q: Is there a useful comparison to be made between GBS and the Kindle’s text-to-speech feature?

Cunard: Not really. Kindle is distributing books with the permission of rightsholders. In the case of GBS, there are millions of books being copied, and there’s no contractual relationship among the various rightsholders. The principle issue for GBS is whether scanning and displaying snippets is fair use; for Kindle, it would be whether there’s a commercially significant non-infringing use of the text-to-speech function. Fair use determinations are highly fact-specific, so it’s hard to compare the two cases.

Q: With regard to the most-favored nation clause in the GBS settlement, how will other organizations compete in book digitization? How do the publishers subclass contemplate competitors to Google?

Cunard: The licenses provided for in the settlement are non-exclusive; the rightsholder can withdraw from the registry before the end of the opt-out period (May 5th, 2009), turn off uses or access to their work after the opt-out period, and can make separate deals with any other licensee. The Registry is not precluded from making deals with anyone else [though, under the terms of the settlement, it can't make a better deal with a competitor that it has with Google], though the “somewhat challenging” question is how Registry would get the authorization from the rightsholders to grant a license to a competitor.

The most-favored-nation clause only applies if the Registry can find a way of licensing rights from a substantial portion of rightsholders who haven’t come forward and claimed rights under the settlement. If 20 million rightsholders’ works are present in Google’s corpus, and only 1 million rightsholders claim their rights, Google still has 20 million licenses under the settlement. The most-favored nation clause only applies if the Registry is licensing a substantial portion of the 19 million unclaimed works to a third party. In this case, the third party might need to pursue its own class action.

Q: Copyright and scholarly communications are increasingly global and international; how far away are we from getting this type of access in other countries, of other kinds of books?

Cunard: The settlement only covers the rights of copyright owners in the US. Under the settlement, Google is only authorized to make display uses inside the US, but the settlement doesn’t actively prohibit Google from scanning and displaying outside the US, so they can try that. Google should get permission for that, but this settlement only deals with the US, so Google can figure out how to pursue analogous results elsewhere.

Frank Pasquale, Visiting Professor of Law, Yale Law School

From Managed Care to Managed Knowledge? A Health Industry Perspective on GBS

There’s a similarity between private managed care organizations in the health care industry and Google. Under the Google Book Settlement, we are going to have middlemen between those who provide info and those who request it. Just as access costs and quality tradeoffs have guided the costs of middlemen in the medical industry, there will be similar access costs/quality tradeoffs when Google distributes digitized books.

Some examples why Google has become the middleman.

1) Market failure – too many publishers to coordinate universal access

2) Public failure - Congress didn’t contribute to the creation of a digital library – no one required a governmental digital deposit requirement

3) Google has imposed order in digital books — just as Apple iTunes imposed order on a chaotic market for digital music, Google has made a similar contribution to the digitized book industry

After the settlement, Google may be viewed like the “Good insurer” – just like managed care orginazations, Google will drives providers costs down. As they do so, however, they may potentially tier coverage (just as best treatments and providers get the best coverage) and reimburse less to certain groups (different entities may be treated differently).

On tiered access to Google Books, imagine Harvard gets everything, Yale gets almost everything, and school that can “only” pay $100,000 a year to get a “disabled version” of the same product. Is this just?

There may also be concerns about the manual change of book rankings –Google can downrank books that criticize it or match its politics. There may be secret Payola deals that induce Google to rank certain books first on a consistent basis.

If books are eliminated there is a risk as well – the settlement allows books to be excluded for both editorial and non-editorial reasons. Although Google has to tell the books rights registry about these excluded books, there is still uncertainty. Who will post those books? How will the public obtain high levels of ubiquitous access to them through another book database?

Extant law probably won’t help the situation.

1) First amendment – unassailable outputs.

2) Trade secrecy

3) Antitrust — Problem here is that it’s a very slow way to resolve things.  Rule of reason decision could take years and years (want quick look or per se illegality). However, proactive government regulation could be useful in this area.

Pricing Concerns

1) Cocaine pricing – worried that they’d be hooked by cocaine pricing. Bait and switch – there are ways in which you have that same cocaine pricing arrangement. There is a worry analogous to how insurers avoid covering the sick.

2) In addition, Google may not care about reaching the people who they don’t want to access. It also not clear if the settlement will prefer a Low margin/high volume model or a High margin/low volume model. The pricing model should be further scrutinized.

3) Concern about gradual price increases — prices may start very low and be raised later on in ways that are anticompetitive and exploitative.

Public Alternatives

1) Digital deposit — The U.S. government could have required deposits of all digitized books into a government-held database.

2) Mandatory Disclosure of the Ranking System — This would provide useful benefits. This would be in the public interest — for example, in New York there was a Doctor Rating Settlement that required transparency in the reporting of Pricing/Ranking practices by insurers who rated doctors. Those doctors were only rated according to price. Once doctors realized that they were doing this, they filed suit.

There is a legitimate case for secrecy of the Web Search Rankings that is not there for Google Book Search – we wouldn’t want Google to disclose its ranking algorithm because we wouldn’t want spammers to game the system. However, in the books case the search domain is bounded by books that have been published.

Medicare could potentially be a model for the settlement. First, it provides care to all in a certain vulnerable population. It also sets a baseline of pricing in the case of collusion — we may want to look at existing government structures if we consider regulation.

Ultimately, it is up to us to alter the terms of the agreement. To summarize, responsive regulation should balance:

1. Incentives for private companies to innovate
2. Public interest in universal access to knowledge

Brewster Kahle, Digital librarian and co-founder of the Internet Archive

Book – Libraries of the Future – Lichliter – he said that everything is going to be digitized by 2000 – he couldn’t find a reasonable copy of it and it was published in 1965.  It is an out-of-print book, and such books are at the core of the Google Books issue.

Some statistics:

Open Content Alliance scans 1000 books a day – 5 countries – have 1.2 million books on the internet.  In court filings google says they have 7 million – OCA will be at about 2 million by the end of the year – all told they’ve done about 2 million books. There is an alternative going on in a really big way. However, they don’t have the same level of resources.

He finally found the book mentioned above at the university of Toronto website – the book is available for $130 so it is very out of print – he took the risk and asked it to be digitized. The book kept getting pulled offline – automatic threads pull it off. He overrode all the threads. He wrote to the head of MIT press to get approval to post it, and this process took a very long time — days of labor.

Interestingly, the book predicting a digital library of a future did not mention copyright at all — this is very ironic given the current situation.

He Referenced the article in today’s New York Times, which is definitely an interesting read for more background.

http://www.nytimes.com/2009/04/04/technology/internet/04books.html?partner=rss&emc=rss)

Google’s search tool has become a digital book store – it will selling subscriptions to Google’s new “exclusive” library. The original lawsuit would’ve at least allowed us to define fair use – this is a new and unsettling form of media consolidation. If approved, there will be 2 court sanctioned monopolies

1) Google the only organization with ability to produce out of print books – no other provider will enjoy the same legal protection

2) Books rights registry will set prices for all digital books

Broad access is ok but providing so much is a danger to principles we hold dear. Free speech, A2K, educational access, etc. will be compromised.

Alternatives

1) Libraries are already digitizing books to borrow, purchase, and read millions of books – not that expensive

a. For the cost of 60 miles of highway can have 10,000,000 books of a digital library

Through a simple search of the internet can find books from many instead of books available for a fee controllable by a corporation

We have wrestled with high-tech monopolies in the past – such strongholds restrict innovation – in these cases the courts stepped in. Have a proposal from monopolies to be created by the court. Monopolies will hinder progress and innovation in this area.

Ultimately, we need legislation to address works that are caught in copyright limbo – need to stop monopolies to create a vibrant library system

We are close to universal access to all knowledge — we must do what we can to continue that trend, otherwise…

• Google will feed everything into Android
• Amazon will feed everything into Kindle

The control of devices will dictate the entire future of this industry, which will be very unfortunate.

He advocates open standards – distributed vending and lending – can find what you want out of search engines to find lists of books, etc. and then directly connect from devices to libraries or booksellers

The Google Settlement is effectively a legislative trick.

And, Brewster reiterated this in a recent article when he said “They are doing an end run around the legislative process” in the following article.

http://www.upi.com/Entertainment_News/2009/04/04/Google-book-plan-facing-opposition/UPI-71431238867635/

Questions:

Can you provide a little more detail on how you see the current project moving towards the distributed form?

Google was a great entry – but they needed publishers to come to the table, and it is hard to get DRM that closes every whole. The distributed system requires relaxation of DRM – track record of what happened with the music guys – itunes controlled a lot of their music –music guys going before – conversations they are having with publishers are very productive

Can loan out of print works – a lot less contentious – publishers make things accessible – libraries loaning out-of-print works and relaxing DRM – up to the libraries to step forward in the loan area

Jeff: Brewster and Jeff Agree – Model should not be exclusive – thorny problem on how you get the rights to the 10 million books – authors and publishers have the rights to the books – rights would have completely reverted to the authors. 10 million books in copyright limbo. Hard question we have been grappling with is how do you get the rights to those orphan works – if one was copying a book and lending the book out – libraries don’t have the rights to authorize distribution through lending.

Brewster: Exclusivity – issue is around the orphan works – things that someone did not come forward and put in the registry. Anytime we have gotten people to sign up for anything – it’s “all the rest that is the issue.” Under a class action Google is the only one that has explicit legal permission to sell those works – a books rights registry may come after Open Content Alliance saying they don’t have the rights for those orphan works. Google and Google alone does

Question: Can Microsoft get a similar settlement going? Medicare analogy – it is pretty expensive –

Frank: Terry Fischer’s book is very useful – although there are articles . Comparison between public and private sector unfair – always know in public regime because disclosure is forced – Frank’s big concern is about the trade secrets

Question: In light of how libraries are coming out – huge capital projects – what are they getting out of it

Jeff: A number of libraries have entered into digitization agreements with Google everything from making replacement copies to certain classroom uses to integrating digital copies into finding tools, etc. – can get snippets from the books

Frank: One challenge – what is happening with Google is that it’s an amazing algorithm but it’s secret – librarians should be a vital part of organizing the web and this knowledge – part of the registry

Jeff: Some Numbers

Google is expert at exploiting the Balkinization of the libraries – see themselves at competing with each other – everything is guarded through non-disclosure – Google stopped all of that conversation

Bait and switch – settlement requires more restrictions on the books that were digitized

Costs – Internet Archive – 10 cents/page – about 30 dollars per book

It is much less at Google – 5-10 dollars a book – 7 million books at $5 each is $35 million

Yale’s library budget is $18-19 million per year – library budget in US $12 billion/year – 25-33% goes to publisher’s products – 3-4 billion per year is spent buying things from publishers

If you were to go and build a 10 million book library (Harvard, New york public) at highest grade quality would be a $300 million project – a couple percent of one year’s budget for

Ann: Pushback – no library can begin to meet the needs of all of its users

Allocation of resources – quite user driven – pay attention to student-faculty aids – something in Ann that can’t wait to get her hands on those 7 million books – there needs to be a chance for the library community to sit at the table – know that sounds like heresy but the second this resource becomes available there will be insistence. What are the needs of our users – Google settlement might become a template for the needs of our users on a smaller scale

Back from lunch, Lea Shaver introduced the third panel, which included Laura Gasaway, Jonathan Band, Denise Troll Covey and Kenneth Crews. The topic: copyright challenges in the era of the Library 2.0…

Lea Shaver

This panel is entitled “The Challenge of Copyright,” but as the five of us put heads together, we realized that this title was all wrong. In the era of the Library 2.0, it’s only possible to speak of the challenges of copyright, in the plural.

These speakers will address copyright challenges that are ethical, legal and logistical; challenges of permissions, privileges and prerogatives; challenges past, present and future.

Lolly Gasaway and Lea Shaver at the Library 2.0 Symposium

Lolly Gasaway

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Laura Gasaway, Associate Dean for Academic Affairs and Professor of Law, University of North Carolina School of Law, kicked off the panel…

My job is to set the stage for our discussion, so I’m going to look historically at two different time periods: the 1909 Copyright Act and the 1976 Act, through the lenses of librarians and university faculty.

1909 Copyright Act: In 1908, a case introduced the first sale doctrine. The big issue in 1909 was the importation of foreign printed works. The U.S. had imposed a tariff, to protect the nascent domestic printing industry. There was an exception to the tariff for libraries. Turns out that the photostat machine was developed soon after 1909. In 1935, there was a “gentleman’s agreement” on fair-use copying by libraries. There were disputes between faculty and their libraries over the copyright ownership of their works.

1976 Copyright Act: For the first time, libraries were explicitly included in the Act (thanks to the photocopier). Librarians were becoming very knowledgeable about copyright. Statute recognized that libraries could reproduce direct copies for users, and indirect copies via interlibrary loan. Faculty were handing out photocopied materials to students; guidelines were promulgated for fair use. Statute also addressed fair use in classroom performances and displays of video and audio.

Today: DMCA facilitated digital replacement and preservation. In 2005, the Copyright Office and INDIP (?) created a Section 108 study group; if its recommendations are adopted, there would be storage of web pages. Faculty are now using electronic coursepacks, course management software, etc. More universities are adopting copyright policies to resolve ownership disputes. Many faculty are considering Open Access.

Is the first sale doctrine available for digital works? The Register of Copyrights says no. Publishers are challenging universities and their libraries (see Georgia State University litigation).

Jonathan Band

Jonathan Band at the Library 2.0 Symposium

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Jonathan Band, Technology and Law Consultant; Author, spoke next about the state of fair use today.

Courts are applying fair use more broadly than ever before.

Libraries and educational institutions should apply fair use aggressively.

17 USC 107 sets forth the fair use doctrine, with the four factors that courts are supposed to consider.

Blanch v. Koons (2d Cir.): Jeff Koons’ painting Niagara included fashion photographs, including legs in silk stockings. The photographer sued for infringement; Koons argued fair use, and prevailed. Note that his use was definitely commercial (he gets paid plenty of money for his paintings).

Perfect 10 v. Google (9th Cir.): Perfect 10 was an adult website; its images were copied on various third-party websites; these thumbnail images appeared on Google Image Search. Google claimed fair use, and prevailed.

Bill Graham Archives v. Dorling Kindersley (2d Cir.): Bill Graham Archives owns Grateful Dead concert posters. Defendant publisher wanted to put together a coffee table book on the Grateful Dead, including a timeline with thumbnail images of the posters. Some of the posters were licensed; some weren’t. Publisher claimed fair use, and prevailed.

Google Book Search: This would have been the fair use case to end all fair use cases – a class action case involving millions and millions of books. But it’s been settled (which we’ll talk about later).

Harry Potter Lexicon case: Reads as a very pro-fair use decision, even though the defendant lost. Under the facts of this particular case, the lexicon crossed the line.

Note that there is state sovereign immunity for public institutions (including state university libraries) — no [actual] damages.

Also, there’s remission of statutory damages for libraries and educational institutions if they’re acting in good faith under a belief of fair use.

Bottom line…

In those circuit cases above, which found commercial uses as fair uses, you’d think that noncommercial uses would be all the more likely to be held as fair use.

Also in these cases, the amount used and the impact on licensing markets were not considered relevant; what was key was the transformative nature of the use.

This suggests that we can use fair use very aggressively — and we can rely on it more than on legislative reform.

And if fair use hinges on transformation/repurposing, then do educational e-reserves qualify?

There still might be serious litigation costs. Do we need a fair use legal defense fund? We already have EFF, the Fair Use Project at Stanford, and various legal clinics. But the library community should think about this.

=== Q&A ===

Q: Address the Georgia State case attempt to redefine and constrain fair use.

Covey: Looking at to a large extent publisher had been receiving royalties for course packets, but with the rise of digital copies, did not receive them anymore at the same level.

Band: Publishers were sending cease and desist letters. Fact on their surface (alleged) seem to favor the publisher. First of all, the policy that Georgia was operating under (20% can be used of a book = fair use). Several instances of 5-6 chapters being electronic copied. No technological protection on any of this either. Anyone in the world could access it. If these facts are true, that may be beyond fair use.

Denise Troll Covey

Denise Troll Covey at the Library 2.0 Symposium

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Denise Troll Covey, Principal Librarian for Special Projects, Carnegie Mellon University Libraries, spoke third. ..

There is a conflict between how academics and publishers view the distribution of academic works.

Covey argues that academics view their works as cognitive property, that cannot be owned, and is distributed in a gift economy, where ideas are distributed through shared interested and good will. The law only described intellectual property, which can be owned, and is distributed in a market economy, where property is bought and sold.

This dispute is moral one, because each framework implies opposing views of where the value of the work lies. Intellectual property finds value in its potential for economic gain, whereas cognitive property’s value is in creator recognition and reward.

Covey describes the ethic of the academic as “hybrid.” She wants control over her work, which can be attained through considering their work as intellectual property. However, she also subscribes to norms of honor and propriety that are more germane to ideas about cognitive property. These two components are in tension in the status quo.

Open access is the gift economy in market space. It addresses the dual needs of the hybrid ethic.

Covey’s study shows that online PDF archives of works tend to breach publisher policy at a high proportion of universities, especially in the social sciences. The actions of academics do not follow the guidelines set by publishers.

She goes on to examine our ethical intuitions on this matter. The gift-giving concept’s intuitiveness is illustrated in how stakeholders view infringement of copyright in this area. The public is not shocked and faculty do not see this as a breach of norms. Publishers care, but only in a “political sense”; they want to maintain control of the paid distribution structure that yields them profits. The conclusion that she draws is that copyright infringement in this area may be illegal, but it is not unethical.

This fundamental ethical difference has lead to a “border skirmish” between academics and publishers. In archiving works online, faculty operates from a gift economy. Libraries are, in effect, the border in this conflict.

Covey argues that realizing that the impulse to share academic works comes from an ethical moral framework core to how academics operate. The call to preserve this could inspire civil disobedience and moral courage among librarians and academics.

Kenneth Crews

Kenny Crews at the Library 2.0 Symposium

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Kenneth Crews, Director of Copyright Advisory Office, Columbia University, spoke last on The Fragmentation of Law and the Future of Libraries. A reckless look at the future…and it’s going to take you a long time to prove me wrong!

Copyright is not actually a unified whole—it’s fractured and splintered, increasingly so.

For decades, we’ve been moving in the direction of stronger and broader rights. Thus the collision course we’re on today. The concept of “balance” is an illusory cliché; it’s time to take a position!

Inevitably, copyright is moving in an international direction, much more powerfully.

We’re seeing a helpless abandonment of copyright principles (e.g. to user-generated content)—yet the law still applies.

There’s a failure of enforceability, because the cost of enforcement is prohibitive; criminal prosecution is very rare. And even if you can effectively sue someone, the remedies aren’t very effective or worthwhile.

So we see private responses: growth of collective licensing (e.g. ASCAP), technological protection systems, settlements of class action suits.

We’re seeing a structural reworking of the environment of copyright law: Creative Commons, the Open Access movement, and the Google Book settlement. It’s like somebody stepping in and saying, “Here’s a chance to rework the rules.”

Creative Commons is a tempering of copyright, limiting rights and/or clarifying author’s interests (e.g. to demand attribution, which the law does not require).

Open Access is an assertion of copyright in order to limit copyright: “I own copyright, and I want to grant open access.”

Google Books settlement: Fragmenting of “books”; the settlement only applies to books published before January 2009, and only U.S. books. Moreover, the books are being dismantled—only portions of books will be delivered, with images excised. Alternative sources will still be possible; we’ll start shopping for the best source. Note that we’re only talking about books—not journals, images, music, art, etc.

Fragmentation of authors (choosing which rights to assert or transfer), fragmentation of works (with or without restrictions), fragmentation of readers (connected or not), fragmentation of publishers (different media), fragmentation of libraries (diversity of terms).

Major blurring of the line between publishers and everyone else…we’ll all take on each others’ characteristics.

And we will become the apologists for the chaos that lies ahead…

=== Q&A ===

Q: How is “alignment” different from “compliance,” from the perspective of an angry rightsholder?

Covey: “Compliance” means following 100% of all the picayune rules specified by the publishers. “Alignment” means an informed choice, based on what risk you’re willing to take. For example, if the publisher allows self-archiving, and choosing which specific policies you’re going to follow (versus which you’ll dispense with). This respects the publisher’s choice about whether or not to allow open access, while minimizing harm to ourselves; we’re saying we have thought about this, and we’re standing behind what we’ve done. If we get a takedown notice, we’ll take it down…

Q: Consider the idea of a social contract, as a fair bargain between parties with different interests…

Band: Faculty really really need to pay a lot more attention to this than they have been. My dad is a professor of comparative literature, and comes to me with copyright questions; he’s annoyed that he signed rights away years ago. There’s a famous Israeli poet whose letters are here, but the copyright belongs to the widow. My dad can’t understand why a researcher can’t reproduce the letters, when Yale owns the copy (but not the copyright).

Shaver: looking at the twitter hash, the single item most picked up from this talk was Denise’s line about the need for libraries to engage in civil disobedience and moral courage. Apparently that struck a chord.

[Applause from the audience.]

Band: But under a liberal conception of fair use, it’s not civil disobedience; it’s compliance with the law!

Q: Show of hands from the audience — whose institution has actually been sued, or threatened with litigation?

[A scattering of hands go up in an audience of hundreds]

Q: Is there something comparable to “greenwashing” going on with publishers? There’s a humanities and social science publisher that allows authors to maintain copyright ownership…but this means nothing in practice, given the assignment of all relevant rights to the publisher. “Open access” ends up meaning that you have to buy back your own work for $4,000 just to make the PDF freely available.

Q: In whose hands does the future of copyright lie?

Gasaway: It’s in the publishers’ hands. Cambridge and Oxford are practically commercial presses. Publishers will continue to drive this…all we can do is argue with them real good.

Crews: It’s in the hands of the authors; that’s the structure of the law. If I’m the author, I hold all the rights, until I give them away. The author needs to make some decisions. I understand that there are pressures of tenure and publication…but you need to work for change from the inside.

Band: The author piece is a generational issue; younger people have a much greater awareness of the issues. So much is driven by the tenure decision, and junior faculty wanting to publish with certain exalted publishers. So we need top-down action from university presidents, etc.; junior faculty needs to get equal credit for open-access publications.

Covey: The future lies in the hands of today’s students: they are becoming accustomed to open access; it’s what they’re going to expect.

• Privacy issues in the Library 2.0 world
• PACER (Public Access to Court Electronic Records)
• The Google Book Search settlement

We invite participants in these groups to report back on their meetings by commenting on this thread.

The second panel, looking at the Ethics and Politics of the Library 2.0, is moderated by Ted Byfield, Visiting Fellow at the Yale Information Society Project and Assistant Professor at New School University.

First up we had Mary Alice Baish of the American Association of Law Libraries, who along with the other panelists has graciously offered to provide slides and resources of her presentation for posting on the ISP website.

Mary Alice Baish

Baish spoke of the 2.0 revolution taking the government by storm.

She spent sometime reviewing the way in which President Obama revolutionized the use of the Internet and social media during his campaign.  Obama has since recently putting forth  three principles that define the open government directive that he has so strongly endorsed — transparent, participatory and collaborative.

There are a variety of examples that highlight how the White House has now begun a full scale adoption of Web 2.0 — from sunshine reqirements on President Obama’s White House web site to a pledge to post non-emergency legislation for 5 days before signing and allowing public comment to a White House blog.    This technological evolution has not come without challenges.  The refomulation of White House.gov, while cleaner and much better designed, still is not search friendly.  Most docs are not in a searchable PDF format and are not particularly amenable to printing.

Acknowledging the looming challenges facing the government, Baish offered a few priorities for the government under the umbrella concept of  “e-life cycle management” — this includes developing robust finding tools (metadata), version control, official status, citation, and authentication.

Baish ended on a note of forewarning, saying that as we move forward in the digital revolution of government, we must be painfully aware of the digital divide that still plagues this country.  The success of the revolution is contingent the accessibility of key  infrastructure by American residents in both rural and urban areas.

Michael Zimmer

Next up we had Michael Zimmer, Assistant Professor, School of Information Studies, University of Wisconsin- Milwaukee. Zimmer spoke largely of patron privacy and avoiding a Faustian bargain.

Citing the scholarship of Neil Postman, Zimmer cautioned that technology giveth and technology taketh away, and not always in equal measure.  This an important principle to remember throughout our discussion today.    Zimmer discussed how libraries are at a crossroads, balancing the need to both provide and sustain access to knowledge.   We need to ensure that we balance wisely.

One of the amazing features of access to knowledge is the development of user generated content.  However, this amazing form of democratic content production also produces many serious challenges:

• First, who owns the content?

• Second, how do we balance user generate-noise v. librarians’ expertise; specifically, how do we ensure that we are not filling our libraries with unvetted nonsense?  These challenges would imply that we need to require monitoring and perhaps censoring of UGC — something contrary to our traditional understanding of freedom of expression.
• Third, many 2.0 features require the tracking, collecting and aggregating of data on patron activities which fly in the face of  — contrary to trandational notions of anonymity in the library.  The venefits to tracking are obvious — a level of personalization that makes libraries more relevant to individual users .  The consequences are of course that aggregation of personal data is a major threat to privacy;

Zimmer concluded his talk by noting that librarians have a strong historical desire to protect privacy and intellectual freedom, beginning with the Library Bill of Rights enacted in 1939 which first codified an age old expectation.  Zimmer suggested libraries develop a code of fair information practices that include:

• notice, informed conent, and recurring opt-in.
• creation of seperate accounts so that 2.0 stuff is seperate from check out information
• avoid using cookies
• anonymize activity logs
• never release activity logs — fight subpoenas!!

Ted Striphas

Third we had Ted Striphas, Assistant Professor of Media & Cultural Studies; Director of Film & Media, Indiana University Department of Communication and Culture, who spoke of the ebooks paradox.

Jeff Bezos once described Kindle as an attack on the last bastion of analog;  he has since backed off a bit and now describes the new e-reader as not intending to “outbook the book” — rather he said they are in some ways less and in some ways more than a book — thus the ebook paradox.

Highlighting this paradox is our seeming obsession with what Gary Hall has described as “papercentrism” — the new Kindle is smaller but is always advertised in the context of paper objects.  We have a profound gravitiational pull that makes digital fall into the orbit of paper;  we expect to digital to mimic paper.  This has made simple technologies  like the text to speech fuction incredibly controversial and legally questionable.

Striphas then discussed  the increasingly instanteous communication between consumer and seller — Kindle is an extension of amazon store.   The data Amazon collects — annotations, bookmarks, notes, highlights or markings– are very private, very useful pieces of information.   Since 2002, Amazon has been remaking itself as a platform to perform on and offline business;  their data services are becoming their major service — their cloud computing service exemplifies this.  Striphas posited that Amazon has become “a kind of 21st century digital utility”

Jessamyn West

The fourth panelist was Jessamyn West, Community Technologist, Librarian, and Blogger. She works in a public library that  serves a population of 900;  her library is the only place in 10-15 miles with public access to the internet.

Her experiences in rural America caused her to higlight some major infrastructure issues that are important to remember as we discuss the ethics of technological progress — specifically — what are our ethical obligations to ensure access?  In discussing this question West mentioned the following lessons she’s learned:

• Access to highs speed internet is not ubiquitious.  In her town,   everyone has dial-up.  So they have to bring their laptops to the library to get software updates — major ethical issue.
• AJAXified web requires broadband — so the major tech developments and tools have yet to reach her town.
• E-government requires tech knowledge/ability
• Overcoming the digital divide requires more than website
• Economies of scale break down with edge cases

Some good stats (from Pew) to keep us all honest:

• 55% of US adults have broadband at home (25% low income); Half between the ages of  50 and 64 have broadband (19% over 65)
• People are saving money by gettin off line — there has been a decrease of 11% in low income households (less than 20K)

Also, to think about, do patrons want to give up their privacy?  Do they understand what that means?   How do we set expectations?  What message do we send when we use these tools ourselves.

Jonathan Zittrain

Finally,  our last speaker was Jonathan Zittrain, Professor of Law, Harvard Law School [h/t to Doug Rand for taking notes on this section which I have copied and pasted in!]

Zittrain: “I come to you without PowerPoint, so I feel digitally naked…”

I first tried to think about some of these library issues at a meeting in 1999. It was a funereal event; we’re in the information economy, the information culture, yet libraries are tilting toward obsolescence. Brin and Page were graduate students, abandoned their studies, started a dot-com. There’s something about these forces outside the citadel vs. inside (academia).

What is the library? A pooling arrangement to deal with the problem of scarcity. The first sale doctrine (far more than fair use) is what allows the library to exist. Library lending as organized piracy — takes money out of the pockets of authors and publishers, who presumably would have killed this if they could…

The money we have is increasingly going into preserving these collections, even as physical copies are likely to matter less and less.

Say that the Google Book settlement provided for absolutely free books: We’d cheer that on…but we’d be putting libraries out of business.

Library as a verb: The act of helping shepherd people through all of this information. Recall Palfrey’s research on how kids use the internet: Almost none of them edited Wikipedia. Can you encourage the kids/patrons to imaging owning it in some way, being a part of it? Do we think of the internet as shared and participatory, where we can build on it without gatekeepers?

A guy named Brewster decides to archive the web, and just starts doing it! The Internet Archive may well be one of the largest infringements of copyright in the world. “When people want something taken down, we work it out.” Why did one guy step up and do this, rather than the academic institutions doing it?

Same with Project Gutenberg: “Let’s get volunteers to type in books!” Or the hacking-PACER project. Or Cornell’s LII. And yes, Wikipedia. And the Google book-scanning project. (You gotta hand it to the Google guys — they were bold enough to just get started, get sued, and then go double or nothing.) Or Amazon setting up the Kindle.

Why are we so reactive in academia? (That’s not always bad — like when we stand up against the Patriot Act.) But we also miss out on opportunities to do something larger. We make the perfect the enemy of the good. Thus we end up not quite getting there; overarching process that never quite get finished.

For example, I want to be able to push a button and archive the web page I’m looking at. There’s a Harvard project do this; it’s called WAX; it’s great, but totally nonfunctional for the casual user.

Lessons: Money can go a long way. (Can’t we get an earmark or something?) Scanning all those books cost $200-300 million. Shopping-cart theft costs $800 million/year!

There are some real possibilities with the digital copies that libraries will have. But we have an agreement drafted by lawyers and businesspeople, and we need to assert ourselves here.

When I think about what is the library, really: It’s a set of values, sometimes reflected by the quirky people who have stepped forward, which need to be defended and fought for and inculcated in students.

== Q&A ===

Q: What security measures are being taken to prevent identity theft, etc.?

Michael Zimmer: Attempts to anonymous information, particularly with search engine inquiries. That’s becoming increasingly problematic. If you look at everything I’ve searched in the past week, you’d probably find out who I am. The AOL data release demonstrated that. Netflix released its data set in an attempt to create a better algorithm. A scientist was able to reidentify all of the users.

Jonathan Zittrain: Maybe there should be a best-of-breed “Library Standard” for security.

Ted Striphas: Amazon’s doing well today, but what if they have financial issues? What happens to all of that data if they sell it off? Who ends up owning what you read?

Jessamyn West: One of our quandaries in small-town libraries: We only use other people’s tools. Our users aren’t sophisticated enough to understand the anonymizing features of Firefox. Can we email a patron an overdue notice, when people share email addresses? That’s our core values versus everyone else’s. That’s what makes a library a library, and not a bookstore where you can sit and read.

Michael Zimmer: Companies should be transparent. Google announced it behavioral targeting scheme; to a very very limited extent, you can see what they’re doing. If you want to collect data on me, let me see it; let me fudge it.

Blair Kauffman, moderator: Let me use the efforts of the Yale Law Library as an example. Our web catalog, the information discovery tool at Yale Law School’s library now harnesses the power of the network, allowing users to rank resources, tag resources. We are using Internet technologies to connect the library to users; twitter, mebo, etc. Become a fan of Yale Law Library on Facebook! We’re thinking about how to generate more user-generated content, using wiki tools for example.

What is the role of the library in the digital world – locating information resources – moving from print to digital environment. Now instead of purchasing materials, we are licensing; what does this mean for first sale doctrine and user access? Should we be concerned about digital rot and the risk that catastrophes like wars or hurricane Katrina pose to archival security? What is the library’s preservation responsibility? Preserve web pages produced by the institution or faculty members, like Balkinization? When I first met Jack Balkin, he asked me what the library was doing to preserve the email correspondence of Dean Koh.

Josh Greenberg is the technical guru at the New York Public Library. John Palfrey of the Harvard Law Library is the author of Born Digital. Ann Wolpert the director of the MIT University Press. Charles Cronin, my colleague from the Information Society Project.

We’ll have an opportunity for questions: and encourage you to frame them in 140 characters or less!

Josh Greenberg

I want to start with Jessica. Jessica is a reference librarian at the New York Public Library. Here is our traditional image of an NYPL reference librarian. They sit behind the desk and you can go up and ask them things. See the brass pneumatic tubes in this picture? This is how books are requested: paper shoots to the bottom of the stacks! But what is the right role for library staff in the digital environment? How do we “digitize” librarians?

I got a lot of pushback for asking this question. But here’s what we’ve come up with. There is live chat, live reference, etc. We started blogging at nypl.org/blog. It’s a way of externalizing knowledge in discrete chunks. It can be discovered, crawled, aggregated, searched. [Visual: tag cloud (most popular tages: hand-made, Fashion, history, Lion Clubs, Art, New York City, popular culture)] The blog will feature prominently in a website redesign coming soon.

Jessica started blogging about knitting, art, stamping. This was not in her official job description; she wasn’t hired for this expertise. [Visual: blog entry "Knitting with conviction"]. She developed an audience, which began to engage in the discussion. Grace Bonnie connected through the blog; she runs Design Sponge, which has 100,00 readers per month. Grace proposed a collaboration to Jessica. The result was a four-part web video series Design by the Book. We are total reality TV junkies! This was our inspiration.

So what are the themes we still need to think about?

1. Intellectual property. In our 2.0 efforts, we very much push people to public domain materials. We’re unclear about the boundaries of fair use and it has a chilling effect.

2. The changing nature of the libary. We are shifting from a world defined by scarcity of knowledge, to one of perceived ubiquity. The library can no longer sit on its haunches and wait for patrons to come to us. Library work is happening “out there.” We leave our building through third-party platforms like YouTube, Flickr, iTunes. I have a standing biweekly meeting with our contracts office to accomplish this!

3. The changing role of librarians themselves. Up until now, the voice has been focused on the institution. This doesn’t map well in the new landscape. We are now promoting more the diversity of voices of our librarians. We have 1000 professional librarians and curators at NYPL. What will it look like at this scale?

John Palfrey

So I will speak in the form of three anecdotes, drawing on my experience at Harvard Law Library, where our patrons are primarily current faculty and students, and the research for Digital Natives.

For Digital Natives, I spent the last 2 years doing focus groups and interview with teenagers and kids. In US, Europe, Bahrain, East Asia – to compare. We describe them as “digital natives” if they meet three criteria: 1) Born after 1980,
2) Have access to new technologies, 3) Have the skills to make use of them.

Anecdote #1. The first set of questions we asked kids was: “How would you come up with information on this topic?”
We used the Spanish-American War, and Lou Gherig’s Disease.

Result: 100 out of 100 kids said they would go to a computer and consult Google. Always Google, never another search engine. All said they would type in “Spanish-American War” the exact name of the subject as we had presented it. Most then look for the Wikipedia entry and go there first.

Only at this point is there significant variation in what they do next. Some say they’re done: cut and paste and turn in the assignment! These folks didn’t have much understanding of Wikipedia’s nature as a participatory network. At the other end of the spectrum, some kids are complete skeptics; think their classmates will have booby-trapped the entry with false information! A majority of students scroll down to the bottom of the page to look for other sources.

We also asked how many have edited a wikipedia entry: 1-2%. Who here has edited a wikipedia entry? [Hands go up: about 50% of our audience.] Who has made a substantive edit? [Hands go up: about 25% of our audience.] Well it turns out that none of our kids have made a substantive entry. Even this 1-2% are just changing semi-colons to periods.

Anecdote #2. We also asked the kids: How do you get up-to-date news and information? None of our digital natives subscribe to a paper newspaper, and then read the whole thing in the morning over coffee. They all “graze” during the day, mediated by a very social process. Friends recommend things on Facebook, etc. A minority do some deep-down research into a particular topic. A very small minority will contribute and participate by blogging, commenting, etc.

Anecdote #3. At HLS Library, we’ve introduced Meebo, etc. Many more people show up in person, rather than enter through Meebo. Even those who start on Meebo, end up coming in for face-to-face. So we are in the very early days of digital librarianship. We have to monitor and continually focus-group what is actually working. There is a split among the faculty. Some faculty are sad to see the books on the shelf going away. Others say we’re not moving fast enough to take advantage of the digital. They ask: Where are the international materials? Where is the raw data? This year we hired an empiricist to help patrons access quantitative data. She was overwhelmed with demand!

Closing thoughts: In addition to evolving norms, we have to think about the collection. What does it mean, where is it going? Librarians need to offer some vision here. What do we want it to look like 5-10 years from now?

We provide access to the public domain material in our fields. See e.g. the hacking of Pacer.

And then there are unique materials: Balkinization, the Dean’s correspondence. We need to render those available into the commons, digitize them.

And then we’re still going to buy monographs.  How do we collect collaboratively? Preserve digitally? This area needs a lot of work, in the access to knowledge frame. Many people think the HLS Library is collecting more than we are. We will buy many fewer things this year.

Library as service: cathedral versus the bazaar. Libraries are a hybrid environment. Temples to knowledge will still exist. But the faculty and students are increasingly operating in the bazaar. We are well prepared to the be the high priests in the temple. We need to learn to be fantastic guides in the bazaar.

=== Q & A ===

Q:  What is the future of the Harvard Law Library?

John Palfrey:

What is *Yale* doing?

But seriously:  What are the unique materials we have, and how are we making them accessible?  We need to digitize our materials on the Nuremberg Trials, and make them accessible.  Also, we’re pushing our journals to make everything Open Access.

Also, we ought to take on the archiving and preservation role of what we create.  But what about all the stuff that’s not in the Internet Archive?  Who’s keeping that?  We need to be non-exclusive, better collaborators; we’re not on the hook for buying everything; let’s create an ecosystem of buying and preserving.

Josh Greenberg:

Our users live in both physical and digital environments, modulating between them in very sophisticated ways.  We’re trying to form a community (e.g. 400 new people showing up in the physical library for the first time).

We need to talk more about Meetup.com — physical people engaging in physical spaces.

Q:  What budgetary challenges do you face at NYPL?

Josh Greenberg:

I joined the library 2 years ago, to retool it for a world where people interact differently.  More investment in digital information and engagement.  Since the fall, we’ve been trying to close a monster budget gap; trying not to jeopardize the digital project in the meantime.

Institutional challenges?  Tension between the individual voices of the staff and public versus the institutional voice of the library.  We don’t have total consensus.  I probe the edges, come up with pilots, where the institutional folks can see value and want to scale up.

Q:  What are some of the major hurdles we need to overcome with regard to open access?

John Palfrey:

Clearly a series of institutional hurdles on a local level, and more system-wide.

At HLS, the faculty had a vote, and forced the issue — unanimous vote to make our own scholarship open access.  Now it turns out to be a bit annoying to add a special IP clause to various publishing agreements.  Only a fraction of what we’re publishing right now is going into the repository.

We have to break the typical publishing cycle.  We pay the faculty to create the work.  We prop up the journals.  As libraries, we buy the stuff — in print, and back from Lexis and Westlaw!  At each of those levels, we need change:  Faculty needs to participate in the commons; journals need a different revenue stream; libraries need to make sure that people are preserving what’s being created.

An entire conference could be done on the challenges of Open Access.  We have to stand up and turn this into a collection action opportunity.

Q:  Can you talk more about public domain materials?

Josh Greenberg:

There’s a lot of institutional conservatism.  What’s a safe video to put online?  For “Design by the Book,” we made sure that there were no camera shots of copyrighted material, and got comprehensive releases from the artists.  We didn’t *have* to do this, but we wanted to avoid having the counsel’s office (who are great) bite our heads off.

John Palfrey:  I think we have to push the boundaries of fair use.  It’s a use-it-or-lose it statute.  If we don’t figure out what’s fair use, shame on us.

Greenberg:  We had a question from an artist in Brooklyn:  “Wait, if I go to the library, I can use material in my artwork?”  Yes!  That’s how the collection lives and breathes!  We later had an overattended workshop on fair use for artists.

Ann Wolpert

I want to consider the role of scholars in the world of Libraries 2.0.  Books are remarkably well suited to their task as genre providing a stable format for an extended argument. Whether formatted in hard copy on paper, or online in pdf. The problem is that John Palfrey’s students aren’t reading extended arguments anymore. Our values about different ways of thinking are changing in the digital age.

In the fall of 2008, a discussion began on the faculty of MIT to consider how faculty members should be disseminating their work, with particular attention to Open Access.  MIT faculty represent virtually every discipline, with the exception of law. After the faculties at Harvard passed Open Access resolutions, the faculty chairman at MIT got many requests from faculty members to consider it as well. So a 12-member interdepartmental faculty committee was convened, which I co-chaired.

The way in which faculty members view their research became very visible as a result of these discussions.

The prevailing mental model was a traditional one of producing books to be held on a research libraries’ shelves. They were not in the least bit confused by the fact that day-to-day, they operated in a very different environment: the digital one. Some were proud to announce they had not set foot in a library in years. But they still imagined that their work persisted in physical form in a library building.

Additionally, every member imagined that their discipline’s processes for creating new knowledge, committing it to a medium, and making it available to readers were standard across all disciplines. Of course that is not true: each discipline has very different disciplines and traditions.

In the course of conversations, five big themes emerged.

1) Faculty were increasingly concerned that copyright transfer agreements they were increasingly being asked to sign might prevent them from using their own work in their classrooms. Nevertheless, they did exactly as they wished in their own classrooms, with a “so sue me” attitude. But the problem appeared in OpenCourseWare. They very proudly contributed their substantive work to the site, but when they looked online, it was stripped down. OpenCourseWare couldn’t get permission from the publisher. Faculty members would complain to their publishers, but were reminded they no longer owned the rights to their work.

2) License agreements contained many provisions in conflict with the way that knowledge is actually used in a university setting. Authorized use for one department but not another, in an interdisciplinary environment. License prohibited access by administrative members, visiting scholars, certain laboratories etc. Faculty members were very upset to see that access to their work was being blocked in this way.

3) It turns out that Library 2.0 is a penthouse, but a penthouse for rent. When you stop paying the high prices, you get evicted. Researchers are increasingly realizing that when they leave the wonderful world of the university, they fall off the edge of the earth in terms of access to resources.

4) Faculty were amazed at the consolidation that has taken place in the journals market in the last decade. [Visual: slide shows consolidation from 8 key players in 1998 to 4 key players in 2008, with a huge red circle representing Elsevier at $9billion; other players are all below $2billion.] The faculty members started talking about this slide as “The Death Star Slide.”

5) Faculty members also realized that they had difficulty with data-mining, which was not authorized by the licenses; the kinds of research projects they wanted to do were illegal!  Note that the Google Book Settlement proposal specifies that Google retains total control over who gets to do datamining with the resources.

Out of these discussions came a really important realization. MIT faculty are pretty sophisticated about the book contracts they sign. But the journal area turned out to be riddled by termites; it did not work the way they expected it to. The system of journal publishing is out of balance. It pits ithe individual author against a publishing behemoth. The faculty do not stand a chance. They concluded that it would be better to think in terms of collective action… bring “Daddy MIT” to the table. MIT is a $2 billion enterprise. Still very small compared to Elsevier, but as other universities join, the balance of power will shift.

So the MIT Faculty passed an Open-Access Policy, which benefitted from lessons learned from the Harvard experience. Applies only to scholarly works written with no expectation of compensation. Gives the university the authority to make the materials available non-commercially. It is opt-out; someone writes to me with their reason for writing out (for data collection purposes) and a waiver is automatically granted. Each faculty member makes an electronic copy available… we can scrap them from the faculty members websites, which is what we plan to do. And there are a few items in this new archive already.

Charles Cronin

There is a quotation from Virginia Wolf, which distinguishes between researchers and readers:

A learned man is a sedentary, concentrated solitary enthusiast, who searches through books to discover some particular grain of truth upon which he has set his heart. If the passion for reading conquers him, his gains dwindle and vanish between his fingers. A reader, on the other hand, must check the desire for learning at the outset; if knowledge sticks to him well and good, but to go in pursuit of it, to read on a system, to become a specialist or an authority, is very apt to kill what suits us to consider the more humane passion for pure and disinterested reading.

There are two types of libraries that correspond to her dichotomy. Reading libraries and research libraries. Those with access to the latter can pivot between both roles. But those whose access is limited to the former have less flexibility to participate in both modes. So I want to talk about the public library, both past and present.

This is a picture of the public library I grew up attending, taken in 1928. When I showed it to my wife, she said “I didn’t know you grew up in Alabama!” But in fact, it’s located in DC, near Georgetown. Now the Discovery Creek Children’s Museum. But in the Johnson era when I knew it, it still looked like this: one room, with a librarian’s desk. It was a place you visited to borrow books that you would read elsewhere, a manifestation of the Carnegie vision, encouraging the public to read themselves to a better existence.

In the last decade or two, there has been an identity crisis to the public library. Struggling to adapt themselves to new technologies, and to the relatively new presumption that libraries will provide content for all of them. Of course, 100 years ago, camera rolls were very popular, but public libraries did not distribute these works, because they were considered works of entertainment. But today, with the exodus of middle-class families to the suburbs, declining tax revenues, urban public libraries are struggling. And they are compensating by trying to be all things to all people. In one such library, of 1 million transactions, 750,000 of them were for feature films.

I think this effort compromises the efficacy of the library as a place to encourage reading. If you go to a major public library today, it is teeming with people, like CostCo on the weekend. But no one is using the library as an information resource. Peeking over shoulders at the computer terminals, 9 out of 10 are being used for email or online shopping. The reading areas were being used by people to fill out tax returns or study for the real estate exam, a hangout for high schoolers, a sleeping space for the homeless.

This has diverted funds from the primary mission of promoting reading. Consider one library’s budget, which allocates $10 million to acquisitions, compared to $7 million on cultural programs. There is no access to JSTOR, the New World Dictionary of Music, or Lexis. The NYPL spends only 7-8% of its annual budget on acquisitions. And while there are electronic resources made available, patrons have to go to the library to use them, which largely defeats the purpose. Libraries should reallocate resources spent on programming to creation, acquisition and distribution of works in electronic form, and their literacy programs should focus on electronic literacy. This is the spirit of Andrew Carnegie’s vision in the digital age.

=== Q&A ===

Q: How difficult will it be for a young scholar to get a monograph published by MIT, say 10 years from now?

Ann Wolpert: We assume that money comes in to offset costs. Who will buy these books? Who will design them? Who will work with the authors, who all acknowledge that they need good editors? Places like the MIT Press are looking for ways to reduce these costs. We need to collectively support the cost of the enterprise; otherwise, there will be no way to produce these monographs. Even with electronic publishing, you still have significant up-front costs.

Q: Consider the goal of making more information available to citizens. What if the academic libraries could collaborate with governments and funding agencies — is that happening?

Ann Wolpert: Some states (until the current meltdown) took it as their responsibility — e.g. Georgia collaborated with libraries to license a set of electronic assets for everyone in the state. But the prices publishers charge for electronic resources are staggeringly high. To the extent that they’ll give a discount to a state like Georgia, it was a very interesting experiment.

Charles Cronin: Really a matter of reallocation of resources. Universities see a demand, and have decided to pay to fulfill it.

John Palfrey: We should have listened to you 5 years ago, and we should listen to you now. The Google Book settlement is the elephant in the room — does it preclude some of the collaborations you’re talking about?

Josh Greenberg: In one sense, we *are* that kind of arrangement. We serve the whole city, and have deep knowledge of the collections. The business model of institutional subscriptions is tailored to the university context, and a handful of corporations. That model breaks when you look at the broad public access mandate of a public library. You can get JSTOR in the building — but if you calculate the cost on an FTE basis for the entire city…!

Q: Consider the example of Delaware — if you have a public library card, you have access!

Q: What were the obstacles to Open Access?

Ann Wolpert: MIT addressed this issue across all the faculty, not just law. Obstacles were quite finite: (1) If you had a policy of this kind, and the publisher refused to publish the work of a junior faculty member, would you penalize that faculty member’s career? We want to know why publishers are asking for a waiver. (2) There are about 1,000 faculty at MIT, which means about 1,200 opinions. The opt-out was envisioned as a way for faculty to support small publishers.

John Palfrey: We did an FAQ on arguments for and against. It does cost money to implement this, in terms of staff and commitment. Also, the publishers demand a fee for open access. My fear is that no other law school has made a similar commitment; I’m worried that nobody will follow us. I’m delighted that MIT did this across the faculty. It’s mostly been hubris preventing us from collaborating; it’s dumb for us to compete on the basis of our collections; we need to compete on the basis of who’s the best collaborator.

]]> http://yaleisp.org/2009/04/panel-1-the-future-of-the-library/feed/ 1 http://yaleisp.org/2009/04/opening-addresses/ http://yaleisp.org/2009/04/opening-addresses/#comments Sat, 04 Apr 2009 13:14:51 +0000 Lea Shaver http://yaleispblog.net/?p=20 The Library 2.0 Symposium kicked off this morning with opening addresses from Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, and Laura DeNardis, Executive Director of the Information Society Project at Yale Law School… including an appropriately 2.0 media mash-up.

Jack Balkin: This is the 12th year of the Information Society Project. How did we decide to do a conference on Libraries 2.0? We do work on access to knowledge, civil liberties online, digital education, privacy. And every time we study one of these questions, we’re brought back to the group of issues involving libraries and archives. Thanks to the Reubhausen Fund at Yale Law School we were able to bring you here today.

Laura DeNardis: In lieu of opening remarks, I hope you enjoy this video montage…

[wpvideo jxOUfett]

Which begs the question…

[polldaddy poll=1515462 align:center]

Once you’ve voted, we invite you to share your reasoning in the comments to this post…

Further announcements from Laura Denardis:

• Thanks again to the Oscar M. Ruebhausen Fund at Yale Law School
• Wireless signal is strongest at the back of the room
• Look for power outlets in registration room and the dining hall
• Send tweets using #lib20 and they’ll show up on the blog
• Upload photos to flickr account “informationsocietyproject”

In the theme of the Library 2.0 Symposium, we’re inviting all participants–including remote ones–to take part in blogging this event by:

• commenting on these posts
• sending tweets to #lib20
• share photos with informationsocietyproject on flickr

Thanks for taking part!

]]> http://yaleisp.org/2009/04/hello-world-2/feed/ 5 http://yaleisp.org/2009/03/hosting-a-green-conference/ http://yaleisp.org/2009/03/hosting-a-green-conference/#comments Mon, 30 Mar 2009 15:46:54 +0000 Lea Shaver http://yaleisp.wordpress.com/2009/03/31/hosting-a-green-conference/ Academic conferences can have a substantial carbon footprint. Here at the Information Society Project, we’re looking for ways to minimize our environmental impact.

One easy step we’ve taken is to minimize the distribution of printed materials. Have additional suggestions for the next Yale ISP conference? Share them by commenting below…