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 | Georgia State University Sued Over E-Reserves
One of the most contentious issues between libraries and publishers in the digital age landed in court this week, as a group of publishers filed suit in Atlanta against Georgia State University over the university's use of electronic course content, including its e-reserves system. The suit, filed by Oxford University Press, Cambridge University Press, and SAGE Publications, and supported by the Association of American Publishers (AAP), charges GSU with "pervasive, flagrant, and ongoing unauthorized distribution of copyrighted materials" via its "electronic course reserves service, its Blackboard/WebCT Vista electronic course management system, and its departmental web pages and hyperlinked online syllabi available on websites and computer servers controlled by GSU."
The suit seeks injunctive relief but not monetary damages. As of press time, GSU had no comment on the suit, telling the Library Journal Academic Newswire they had yet to be served with the complaint. The suit specifically names GSU's president, provost, associate provost for technology, and dean of libraries, Charlene Hurt.
The filing offers a remarkably detailed view of what the plaintiffs believe to be infringing activity at GSU, including specific examples of the uses it considers to be beyond the scope of fair use and a detailed appendix of alleged infringed materials. The suit charges that as of February 19, 2008, GSU's e-reserve system contained "over 6700 total works available for some 600-plus courses," made them "available for electronic distribution," and "invited students to download, view, and print such materials without permission of the copyright holder."
Notably-and most likely not by accident-two of the three plaintiffs listed in the suit are nonprofit university presses. OUP publisher Niko Pfund told the LJ Academic Newswire he was reticent to turn to legal action, but said the publishers had no choice because GSU officials flatly refused to discuss the issue.
"They responded by not responding," Pfund said of publisher efforts to engage GSU about its e-reserve system. "I consider this a failure of dialogue. It's a shame. We've successfully come to agreements with others over the years. But Georgia State just wouldn't talk with us." Pfund said he was troubled by GSU's refusal to discuss what he considered an overreaching fair use claim regarding its electronic course content. "Fair use is critically important to university presses," he noted. "We can't publish without a liberal interpretation of fair use. But they were extremely unwilling to enter into a conversation about this."
The lawsuit marks a new tactic in the ongoing, often tense battle over e-reserves. While the threat of litigation has reportedly loomed over a number of universities, this is the first time publishers have filed a lawsuit over a university's e-reserve practices. In 2003, AAP lawyers targeted the University of California, San Diego, which vigorously rejected AAP's allegations. In 2006, Cornell University and AAP released joint guidelines for electronic content under the threat of litigation. And, most recently, in January of this year, AAP praised accords with Syracuse, Marquette, and Hofstra on universities regarding their new guidelines for the use of electronic content.
Prue Adler, associate executive director for the Association of Research Libraries (ARL), reserved a detailed comment, noting that how GSU responds to publishers' infringement claims in the suit will determine the next steps.
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E-Reserves Suit Raises Risks, Questions
Despite publishers' earlier statements that they were not threatening litigation over e-reserves and other forms of electronic course content, librarians have long felt that a lawsuit over e-reserves was bound to happen. And now that publishers have singled out electronic course content at Georgia State University (GSU), the suit raises new questions about what's next for a practice that is ubiquitous on college and university campuses-and, many say, essential to the work of libraries and educational institutions.
The first question is whether Georgia State University, as a state institution, is protected from a federal copyright case under the constitutional doctrine of state sovereign immunity. "The answer seems to be in one of the few exceptions to sovereign immunity," known as the Ex Parte Young doctrine, codified in a Supreme Court decision, explains Kevin Smith, on Duke University's scholarly communication blog. "That exception holds that one can sue state officials in their official capacity if one is seeking only injunctive relief-an order to stop the infringing activity-rather than money damages. The complaint filed against GSU takes exactly this tack, seeking only an injunction to stop the activity going forward, not damages for alleged infringement in the past." The suit names four state university officials as defendants, including dean of libraries Charlene Hurt.
If the case had been filed against a private university, it likely would have been different in many ways. First, given the exposure to massive money damages for past infringement, experts say an out-of-court settlement against a private institution would almost be assured. Also, given the much-touted, jointly-announced guidelines from the Association of America Publishers (AAP) and Cornell University in 2006, reportedly under the threat of just such litigation, we know pretty much what that settlement would look like.
The "one-size-fits-all" guidelines, however, given the range of educational institutions and their needs, and the vagueness of copyright law, have not offered publishers much solace, however. "Slapping a policy on your web site is the tip of the iceberg," University of Texas scholarly communications advisor Georgia Harper told Library Journal last year in its examination of the issue, Down With E-Reserves! "We don't need a one-size-fits-all solution. We do need a more realistic sense of where to draw the line, because, right now, it can be justified to draw it just about anywhere."
Certainly publishers' don't have the time to negotiate guidelines with every institution-but their efforts so far have failed to achieve any kind broad consensus via efforts like the Cornell guidelines. A court decision in the GSU case, however, which targets only future practices, however, would add judicial weight. That would certainly motivate a consensus-and the stakes are sky-high for libraries.
"We might actually get a decision about the meat of the claim-that electronic reserves are almost always infringing if the universities do not pay for permission," Smith writes. "In effect, this is an attempt to enforce judicially a 'pay-per-use' model of content distribution." If successful, he added, such payments would surely "come straight out of students' pockets."
The suit, however, carries risks for publishers as well-they are, after all, suing their customers, always a risky strategy, especially in light of new technologies and the open access mandates like those at Harvard University and the National Institutes of Health. If publishers were to win a broad victory in a Georgia court, it could push colleges and universities to move more aggressively on open access initiatives.
"The real irony," Smith writes, "is that [the lawsuit] is justified as an attempt to remedy a 'free-rider' problem-the claim that universities are appropriating the work of publishers and authors without just compensation…publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation."
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| Content, Your Way: Spring Issue of LJ's NetConnect Focuses on Publishing
As this week's news regarding the Georgia State University e-reserve lawsuit suggests, these are indeed interesting and challenging times for publishers-and, accordingly, publishing is the focus of the Spring 2008 netConnect supplement to Library Journal. Check out the issue, "Content Your Way" and also a web-exclusive Q&A with Jill O'Neill, director of planning and communications for the National Federation of Advanced Information Services and Ben Vershbow, editorial director of the Institute for the Future of the Book, who share their thoughts on successes in community publishing, the notion of authorship in collaborative environments, and the technology enabling these community interactions online.
Vershbow meanwhile, also broke some news of his own today-he is leaving the institute "after three and a half fantastic years" for as yet unknown shores. "I plan to continue in this field (whatever you call it-publishing, new media, web stuff)," Vershbow blogged, "and also to pursue other interests that have reawakened during my time here (namely that most unmediated of art forms, live theater)."
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| Library of Congress Unveils New "Experience"
With interactive technology, digitized documents, and much AV material, the Library of Congress (LC) has launched the "Library of Congress Experience," along with a companion web site. The Experience includes new ongoing exhibitions, dozens of interactive kiosks, and a continuing online educational experience, LC said. In an outreach effort to connect past and present, an "Inspiration Across the Nation" campaign solicits examples of stories, poems, video, audio, and photos from ordinary citizens. The library dangles a carrot: select entries will become be part of LC's permanent collections.
The "experience" debuted last week, as three bronze doors to LC's historic Thomas Jefferson Building were opened to the public for the first time in nearly two decades. Two orientation galleries that flank the Great Hall each offer a multimedia "overture" on a multi-screen collage. A Passport to Knowledge leads to the Experience's "greatest hits." A new exhibit, "Creating the United States," explores the documents, words, and phrases key to the country's founding. The companion web site offers interactive versions of the same exhibition content and more.
LC relied on significant support from corporations and foundations: $15 million in private funds (with some $8 million donated in services), according to the New York Times. In a review cheekily headlined We Hold These Truths to Be User-Accessible and in Hypertext, New York Times critic Edward Rothstein questioned the name, suggesting that "the word 'experience' seems to promise something disruptive in this context," but concluded that touch-screen kiosks that magnify images and link to other information sources are well-suited to conveying how documents changed between drafts and to discover thematic connections. Still, he said, since displays currently "err on the side of brevity," they should provide more depth.
Meanwhile, at a public celebration last Saturday, LC presented seven "Living Legend" awards, which since 2000 have honored "artists, writers, activists, filmmakers, physicians, entertainers, sports figures and public servants who have made significant contributions to America's diverse cultural, scientific and social heritage." Among this year's recipients: race-car driver Mario Andretti; Civil Rights activist Julian Bond; jazz pianist and composer Herbie Hancock; historian David McCullough; columnist and commentator Cokie Roberts; baseball star and pioneering manager Frank Robinson; and broadcast journalist Bob Schieffer.
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Best Sellers in European history, August 2007-present, as compiled by YBP Library Services
(13-digit ISBNs in brackets)
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Weimar Germany: Promise and Tragedy
Weitz, Eric
Princeton University Press
2007. ISBN 069101695x [9780691016955]. $29.95
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Young Stalin
Montefiore, Sebag
Alfred A Knopf
2007. ISBN 1400044650 [9781400044658]. $30.00
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Barbarism and Civilization: A History of Europe in Our Time
Wasserstein, Bernard
Oxford University Press
2007. ISBN 0198730748 [9780198730743]. $45.00
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God's Crucible: Islam and the Making of Europe, 570 To 1215
Lewis, David L.
W.W. Norton
2008. ISBN 0393064727 [9780393064728]. $29.95
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Discovery of France: A Historical Geography from the Revolution to the First World War
Robb, Graham
W.W. Norton
2007. ISBN 0393059731 [9780393059731]. $27.95
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Nazi Ancestral Proof: Genealogy, Racial Science, and the Final Solution
Ehrenreich, Eric
Indiana University Press
2007. ISBN 0253349451 [9780253349453]. $34.95
-
Politics of the Veil
Scott, Joan Wallach
Princeton University Press
2007. ISBN 0691125430 [9780691125435]. $24.95
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No Simple Victory: World War II in Europe, 1939-1945
Davies, Norman
Viking
2007. ISBN 0670018325 [ISBN 9780670018321]. $30.00
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Et Tu, Brute? The Murder of Caesar and Political Assassination
Woolf, Greg
Harvard University Press
2007. ISBN 0674026845 [9780674026841]. $19.95
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Franco and Hitler: Spain, Germany, and World War II
Payne, Stanley G.
Yale University Press
2008. ISBN 0300122829 [9780300122824]. $30.00
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That Neutral Island: A Cultural History of Ireland during the Second World War
Wills, Clair
Belknap Harvard
2007. ISBN 0674026829 [9780674026827]. $35.00
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Where Have All The Soldiers Gone? The Transformation of Modern Europe
Sheehan, James J.
Houghton Mifflin
2008. ISBN 0618353968 [9780618353965]. $26.00
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A Failed Empire: The Soviet Union in the Cold War from Stalin to Gorbachev
Zubok, V.M.
University of North Carolina Press
2007. ISBN 0807830984 [9780807830987]. $39.95
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Lenin's Private War: The Voyage of the Philosophy Steamer and the Exile of the Intelligentsia
Chamberlain, Lesley
St Martin's Press
2007. ISBN 0312367309 [9780312367305]. $27.95
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Roman Triumph
Beard, Mary
Belknap Harvard
2007. ISBN 0674026136 [9780674026131]. $29.95
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Most Holy War: The Albigensian Crusade and the Battle for Christendom
Pegg, Mark Gregory
Oxford University Press
2008. ISBN 0195171314 [9780195171310]. $25.00
-
Lion and the Unicorn: Gladstone vs. Disraeli
Aldous, Richard
W.W. Norton
2007. ISBN 0393065707 [9780393065701]. $27.95
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Landmark Herodotus: The Histories
Herodotus
Strassler, Robert
Pantheon
2007. ISBN 0375421092 [9780375421099]. $45.00
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Terror and Democracy in the Age of Stalin: The Social Dynamics of Repression
Goldman, Wendy Z.
Cambridge University Press
2007. ISBN 0521866146 [9780521866149]. $75.00
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Voices of the Dead: Stalin's Great Terror in The 1930s
Kuromiya, Hiroaki
Yale University Press
2007. ISBN 0300123892 [9780300123890]. $30.00
Library Journal Academic Newswire
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