I once took one of those pricey b-school executive education workshops designed to teach leadership skills.  One of the things I learned there was the importance of distinguishing between adversaries and enemies.  In academic administration, in library management, and in the life of a faculty member, one often finds oneself in positions that are adverse to others.  Indeed, I frequently find that some of my best friends are my adversaries.  Even in the best of mutually beneficial relationships – faculty hires, journal subscriptions, author’s contracts with publishers – there often comes a point where a little more for one party comes at the cost of a little less for the other.  Authors want royalty shares to be higher and retail prices to be lower than do publishers, for example.  The head of the faculty senate may want the provost to take time consulting over what the provost sees as minor issues.  And frequently, especially in universities, people disagree on matters of principle or matters of fact while maintaining respect for contrary views and those who hold them.

Academic publishers are often in positions adverse to their authors (disagreeing about pricing, royalties, advances etc.)  Similarly, they are often in positions adverse to libraries (pricing again, sometimes licensing terms).  And university-based presses are often in conflict with the university administration, largely over the fiscal relationships between the two.  All of this is as normal as the sun rising in the east and as American (British) as apple (steak-and-kidney) pie.  But in a case currently before a federal court in Atlanta, Cambridge University Press et al  v. Patton et al, three academic publishers, with the support of other publishers’ organizations, notably the Copyright Clearance Center, have taken a position that crosses the boundary from adversary to enemy. [1]

The case is well-known in the world of academic publishing, and is well-described in a recent article in The Chronicle of Higher Education, and in an excellent blog post by Peggy Hoon. Briefly, the plaintiffs allege (and they may well be correct – determining the facts and law is the point of the lawsuit, and I do not pretend to know the answers) that Georgia State’s practices with regard to electronic reserves violated copyright law.  Because Georgia State is a public institution with 11th Amendment immunity, the plaintiffs do not seek monetary damages.  Rather, they seek to change radically the interpretation of copyright law as it applies to higher education, and to alter fundamentally the ways in which faculty use copyrighted materials in their teaching.

The plaintiff’s draft order applies formally only to Georgia State, but if the Court grants the plaintiffs what they seek, the result will be, in the words of  Duke University’s Kevin Smith, “a nightmare scenario for higher education:” fair use would be destroyed, university faculty, students, and staff would be subjected to outrageously restrictive copyright policies, and every university would be required to hire a squad of copyright cops to ensure that faculty do the publishers’ bidding. And while it’s not an uncommon strategy to ask for far more than you expect to receive in a negotiation, which this proposed injunction surely is, your “highball” offer is certainly something that you wouldn’t mind having. What the plaintiffs are saying is that they are quite willing impose enormous costs on academic performance and academic freedom in exchange for higher profits.  This is not the request of a friendly adversary; this is the attack of an enemy. (Yes, academic authors would also receive some financial benefit, but note that the typical split for incremental revenue is around 90-10 in favor of publishers, and that the additional revenue that publishers would receive under the plaintiffs’ draft order would be obtained NO additional cost incurred by the publishers beyond cashing checks and paying their lawyers.)

As a faculty member, I do not know that I could comply with the restrictions in the proposed injunction for using copyrighted material in my classroom; they are too onerous and much too expensive.  As an author and an educator, I have a great respect for copyright law, and I believe in a balance between creating incentives for authors and promoting the ”progress of science and the useful arts.”  The proposed injunction does not strike that balance; it unreasonably restricts access to copyrighted works, eliminates fair use, and will force professors to spend much of their time in an exercise of copyright self-censorship. Imagine that if every time you wanted to quote from a text, show an image, or distribute a handout to your students you had to seek the approval of the University Copyright Police; the consequences would be dramatic.  (Lest you think I am exaggerating, check out the form that, were the publishers to have their way, faculty would have to fill out every time they put copyrighted works on electronic reserve.[2])

Call me gullible, but even now I am not fully persuaded that academic publishers are the enemies of faculty and the university. However, I do think that something has gone horribly wrong when entities that were created to serve scholarship employ legal procedures that would hamstring scholars and students who engage in customary and effective behaviors in their teaching and learning. I hope that Judge Evans will recognize that the publishers’ proposal is a plain violation of copyright and would be destructive of vital public purposes.  And I hope that cooler heads will prevail among the plaintiffs as well.  If not, we will have to find other means to a better future than the one which the publishers propose.  Whether that future can include publishers who would behave inimically to the purposes of higher education  is less certain.

[1] I have blogged on this subject before. At that time I bemoaned the fact that the two plaintiffs associated with universities treated a conflict between institutions of higher education as a strictly commercial matter.  I still bemoan that fact, which is at heart of the current problem.  Institutions of higher learning, and their presses, should be mission-driven, not profit-driven.  But I digress.

[2] Not only would faculty have to fill out out this form for every electronic resource that they would use in their course reserves, but it would also need to be checked by University officials who would then make certifications to the publishers. Of course, most faculty would have no practical way to develop the required information, but the Copyright Clearance Center, which is providing financial support for the plaintiffs in the Georgia State Suit, would be happy to provide such certification for a fee. Kevin Smith makes the surprising connection between CCC’s role in this case and the old medieval doctrine of champerty.