Perhaps not surprisingly, Mr. Allen and I do a good deal of talking past each other.  He correctly observes that I don’t address the plaintiffs’ motivations for filing suit, and characterizes those motivations in ways that put the plaintiffs in a favorable light.  Not knowing the plaintiffs’ motivations, I have no substantive comment except to note again, as I did when the suit was filed, that one might hope that university-based presses would enlist the academic leadership of their universities in efforts to mediate academic matters before initiating legal action.  To my knowledge, no such efforts were ever made by Oxford, Cambridge, or their distinguished presses.

The central claim in my blog post and PW piece is that the remedy sought by the plaintiffs is inimical to normal practices of teaching and learning in universities, and would put insupportable burdens on the behavior of faculty in their development and delivery of courses.  Mr. Allen’s response to that central substantive claim is to let it slide by with the following commentary:

I won’t attempt in this space to explain how the plaintiff publishers’ proposed injunction, if approved by the court and properly administered by GSU officials, could simplify the task of making fair use determinations and obtaining permissions to use copyrighted material in an effective, timely manner.

In other words, he asserts that my claim is wrong (or worse) but chooses not to give even a hint as to why or how it might be wrong.

Mr. Allen then goes on explain how all of Georgia State’s problems, and presumably everyone else’s, would be solved if libraries would sign up for the Copyright Clearance Center’s blanket license, which is available at a reasonable price.  Maybe so, but because not all publishers are covered by the CCC license, universities would still have to go through the process of establishing the bonafides of all of the works not covered by the CCC license These would include works published by Cambridge University Press, one of the plaintiffs.  Unless the coverage of CCC licenses were universal, faculty would still be subject to the tender mercies of new university bureaucracies that would be charged with acting as copyright police, requiring faculty to provide information that they often would not have.

Furthermore, for most libraries, many of the works covered by the CCC license are also covered by other licenses that that libraries purchase directly or indirectly from publishers.  Thus the CCC blanket approach would result in libraries paying more than once for rights to some works, while still having to do onerous handwork for works that are not covered by the blanket license.  The simple solution is perhaps not so simple.  [It's worth noting that the CCC is helping to underwrite the cost of the lawsuit.]

With all of that, Tom Allen and I agree on two important points.  He states that “when academic copying and distribution of material clearly constitute fair use, permission is unnecessary.”  I couldn’t be more pleased to see such a ringing affirmation of fair use as an integral element of copyright law from the AAP, although I expect that there might be some substantive disagreements over the clear constitution thereof. Mr. Allen also observes that the “ecosystem that binds educators, librarians and publishers … will survive this litigation over copyright infringement.”   I have no doubt that it will, but not on the terms of the plaintiffs’ proposed order in the Georgia State litigation.

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 11^th 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.

Many friends and acquaintances have weighed in on the subject, as one might imagine. The PR apparatus at the University, unsurprisingly, wanted to pitch the removal of the catalog as a symbol of the growth of the digital library, with all of the forward-looking and progressive connotations that such a view might support. Most people, librarians and others, were surprised that we still had the card catalog. This included senior faculty who often opine as to how much they love browsing in the stacks but who haven’t actually been there for a decade or two. Younger people didn’t even know what it was. (The current graduating class, it is worth noting, were mostly not born when we retired the catalog.) Most of the library staff were happy to see the thing go. My own view turns out to be at the sentimental end. Forty-some years ago, card catalogs gave me a window on the world of scholarship that left me (and still leaves me) in awe. Of course we have the same information on line, and one is still awed by the resources of libraries great and small. But just as I will always remember Ebbets Field as the location of the first baseball game that I saw in person, the Queen Mary as my introduction to transatlantic travel, and the 6th edition of Samuleson’s introduction to Economics as, well, my introduction to economics, I’ll always remember the card catalog as the rich, powerful and brilliant piece of scholarship that it was, and as a place that I visited in eager anticipation of learning something new. I don’t think that I was ever disappointed.

And then came the plagues.

The week before the catalog was moved, I went down to the basement of the library to find my own cards and those of members of my family, with the intention of removing them and keeping them, why I don’t know. And I’ll never find out. I worked my way through the alphabet, to a box whose last drawer ended with “Cooper.” I figured that “Courant” couldn’t be very far away, but the next case started with “Da-” Where were the Courant cards? It turned out that some years ago there had been a water leak, undiscovered for weeks, that had led to water damage and subsequent mildew and mold. The cards had been destroyed at that time.

On March 8, the cases were trucked to Property Disposition. About half way through the exercise a case hit a sprinkler head, creating a torrent of rusty water, water that looked like blood and smelled worse, damaging hundreds of books (all of which were saved by our overwhelmingly competent preservation staff) and making quite a mess.

With Passover coming, I’m on the lookout for frogs.

Broadly, peer review is the set of mechanisms that enable scholars to have reliable access to the informed opinions of other scholars, in a way that allows that those informed opinions themselves to be subject to similar vetting.

Scholarship requires reliable and robust peer review, and the academy engages in peer review in a variety of ways, both direct and indirect. Peer reviewed publication is one method, and a fairly powerful one at that. If you read a paper in (for my field) Econometrica or the Journal of Political of Economy, you are reasonably confident that accomplished scholars in the field have made a judgment that the paper is of high technical quality and worth reading, and that experienced scholars have made a judgment that the paper is of interest beyond its narrow subfield. Those are valuable pieces of news as one is looking for a way to spend some time, and they also tell you something about the likely quality and accessibility of papers outside of one’s specialty, should one be branching out or needing some background information or trying to figure out who to consider for an open position in the department.

Similarly, the appearance of an article in a leading specialized journal, or of a monograph in a prestigious series published by a scholarly press, conveys valuable information (at least to the cognoscenti in the field) about the quality of the book or paper.

The peers who undertake the reviews are genuine peers. They are scholars whose judgment is trusted by experienced members of editorial boards, who are themselves generally senior scholars in the relevant field(s). Such people engage in peer review pretty much all the time. They go to seminars and talks, read draft manuscripts from students and colleagues, near and far, review grant proposals, engage in workshops, and vet tenure and promotion files. In short, the peers doing the reviews are active scholars engaged in active scholarship. (Sometimes they even spend some time writing their own stuff.) They could no more NOT provide “peer review” then they could give up reading and writing. Peer review is part and parcel of what serious scholars do.

I’d guess (and I would love to see a serious study) that the fraction of time that scholars spend engaged in formal peer review of publications – journal articles and monographs — is less than half of the time they spend on peer review in total. Moreover, the work that has traditionally been done under the aegis of publishers is increasingly being done in other settings. In fields where it is customary to post working papers on the web, interesting papers generate a good deal of peer review in the form of commentary from peers. Given that it takes essentially no time to move from word-processor to web posting, and that it often takes years to get from submission to a journal or scholarly press to formal publication, it’s not surprising that informal peer review is becoming more common. This is good news. Scholarship advances more rapidly if work can be widely shared relatively quickly and easily. Given that publication in the literal sense (making public) is now easy and cheap in the technical sense, it seems almost certain that informal review will grow relative to formal review.

For several years, I was the chief academic officer of the University of Michigan, and I have been involved in the review of tenure cases, grant proposals, journal articles and book manuscripts for more than 30 years. The most interesting and important of these activities are reviews associated with tenure and hiring. It is often argued (quite explicitly so by some) that without the reviews associated with publishing, the academy would be at a loss in making judgments about the quality and productivity of scholars. To be sure, for reasons adduced above, a record of publication in strong peer-reviewed settings conveys valuable information to tenure and search committees, chairs, deans, and provosts. But the fact of the matter is that we pay equal attention to other reviews, including (for some fields) those required to obtain research grants, and (for some fields) post-publication reviews that appear in journals and other venues. We also take very seriously the opinions of ad hoc reviewers, inside and outside of our institutions, who prepare and evaluate the case for promotion and hiring. Take away the information conveyed by publication venue, and these tasks become more difficult, to be sure, but by no means impossible. And the essential part – close reading of the work by peer reviewers – remains intact.

Just as it pays for almost all of the content that goes into scholarly publication, so too does the academy – colleges, universities, research centers, and the entitites that fund them – pay almost all of the costs of peer review.

Publishers provide many useful services, but they do not provide peer review. It is the peers themselves who do that essential work.

The second point is that, according to the Times, Cambridge University Press licenses pages for electronic reserves at 17 cents per student per page, for up to 20 percent of a book. The marginal cost to Cambridge of permitting such use is the billing cost, so the 17 cents is essentially all profit. If a student is willing to go to the effort, of course, she can take the book out of the library, and photocopy the pages for five or six cents each. The photocopy alternative is not as useful to the student as the scanned version on the course site, but note that Cambridge bears exactly none of the costs of making the scanned version available; Georgia State bears that cost.

Digital technologies have the capability of greatly reducing the overall social cost of making scholarly materials available to college students. Cambridge’s mission statement would seem to suggest something other than the lawsuits as a principal mode of engagement with other institutions of higher learning: “The mission of the University of Cambridge is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence.”

Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go after an urban university that is much less well-resourced.

There are any number of details that will have to be worked out before we know how the mandate will be implemented, and we will probably never know the precise effect on the world of scholarly publishing. But the vote of the Harvard Faculty of Arts and Sciences makes a point that should be widely applauded in the academy. Harvard University Librarian Robert Darnton put it well in his op-ed before the faculty vote:

The motion before the FAS provides a way to realign the means of communication in a way that will favor learning. It will be a first step toward freeing scholarship from the stranglehold of commercial publishers by making it freely available through our own university repository. Instead of being the passive victims of the system, we can seize the initiative and take charge of it.

What almost all faculty care about almost all of the time is the dissemination and use of their work, not its commercial consequences. We have always known this, of course, although organizations that purport to speak for the interests of authors frequently place inordinate emphasis on authors’ commercial interests. What the Harvard faculty has done is give us all a visible and powerful affirmation that what really matters is academic work itself, and not the profitability of particular industries that have grown up around it.

Faculty time and effort, in research, writing, and reviewing, are by far the most valuable ingredients of scholarly publication, and there is enormous scope for universities and faculties to reclaim publication and the associated profits from commercial enterprises. The problem of limited, over-priced access to scholarship is a big one, and the more different ways we try to fix it, the better our chances that a few of them will work. The declaration by Harvard’s faculty focuses on one strategy — mandated (or at least default) deposit into institutional repositories. But more important than the choice of strategy, the declaration reminds us of how much is at stake and why it matters.

It is somewhat troubling that some academic publishers and academic societies have expressed concern that the Harvard mandate will put them at mortal risk, while merely trimming the profits of the big commercial publishers. Plainly, we in the academy have an interest in robust nonprofit scholarly publishing, but we should not fall for the idea that the only way for nonprofit publishing to survive is through policies that assure huge profits to the big players. (There is an analogy to agricultural policy here. In the name of preserving the “family farm,” governments around the world provide billions in subsidy to agribusiness.)

For now, let me repeat that the big news in the Harvard vote is that it helps all of us to focus on the main point — which is that scholarly publishing, through a variety of mechanisms, is first and foremost about making scholarship public, not making money. So, strange as it may sound coming from Ann Arbor: Go Crimson!

In 2005, when the Motion Picture Association of America stepped up its campaign against college movie pirates, officials with the trade group said that 44 percent of the film industry’s domestic losses were the result of illegal downloads on campus networks.

That statistic — which came from a report by a research firm called L.E.K. — was certainly striking. But it was also wrong, MPAA officials now say. According to the Associated Press, a “human error” compromised the study: In fact, the MPAA says, just 15 percent of the movie industry’s domestic losses can be attributed to campus piracy.

Like most humans, I am overwhelmingly sympathetic to human error. I am less sympathetic to using data that are subject to error to push people around and to lobby for draconian legislation, while refusing to make the underlying data available for study and examination. The University of Michigan asked the MPAA for their study years ago, and has also asked the Recording Industry Association of America (RIAA) to provide the data upon which they base their own remarkable claims about the prevalence of file sharing of copyrighted materials on college campuses. This university, and many others, have great expertise in the analysis of such data. In an important sense, it’s what we do. We also have a culture of openness, in which we allow others to examine and criticize our work.

The MPAA reports that it is going to have an independent third party check the original study and report on it. Here’s an idea: Why don’t they simply make the study public and let the world have at it?

Partly as a result of the deeply flawed MPAA study, Congress asked the University of Michigan to respond to questions about file sharing. We post such things, of course, and the questions and answers are available on our copyright website under “House Judiciary Committee Survey of University Network and Data Integrity Practices”.

And, as long I’m talking about our friends in the big media companies, it’s worth noting that AOL, a much bigger Internet Service Provider than all of the colleges and universities put together, is owned by Time Warner, which in turn is a member of both the RIAA and the MPAA. Surely a great deal of illegal filesharing is undertaken by AOL users. It is puzzling that RIAA and MPAA want colleges and universities to employ mechanical measures that would restrict what their students can do, but they have not pressed AOL to impose the same restrictions. (Actually, it’s not puzzling at all, but it ought to be.)