Au Courant

Yesterday Marta and I went to Opening Day of the baseball season, and got to watch an exciting baseball game in which the Tigers beat the Royals (yay) in the bottom of the ninth (very yay) after coming back from two runs down in the seventh (yay again).  The new manager did three things that the old manager had never done, each of them leading to extended conversation on the way home.  (For those of you who are dying to know, see the appendix below).  It was a fine baseball game, close, mostly well-played (well, there were two errors so not that well-played), with some clutch hitting, elegant fielding, a comeback, interesting managerial strategy, and other features that make baseball fans happy and bore the rest of the population to tears.  And the home team – our team– won, which felt especially good after Michigan’s close loss to Kentucky in basketball the day before, and, by the way, let me register another chorus of yays for our amazing basketball team and its wonderful coach.

But unlike the basketball game, which was about basketball, and unlike almost all baseball games, especially those in which a sellout crowd watches the home team come back late and win in the bottom of the ninth, Opening Day was not mostly about baseball, but about Spring, and about the openings that go with spring. I have been to many baseball games, but Opening Day in Detroit is something else.

Ernie Harwell, the great baseball announcer who broadcast Tigers games on the radio for decades used to quote from the Song of Solomon (2:11-12) every spring.  The same lines are part of the Seder ceremony, in the Passover Haggadah, although the version of the Haggadah that I use says “dove” where Harwell and the King James Bible say “turtle.”  (I’m guessing there is a turtledove lurking behind this conundrum, and would be grateful for more information.)

“For lo, the winter is past, the rain is over and gone; The flowers appear on the earth; the time of the singing of birds is come and the voice of the turtle is heard in our land.”  (Click here for Harwell’s rendition.)

The song in which these lines are embedded is a song about physical love, and is, not to put too fine a point on it, pretty sexy.  So, too, is the scene at Comerica Park on opening day.  People are there to see and be seen, to strut their stuff, to celebrate the end of a long winter and exult in the joy of spring and the symbol of spring and the summer to come that is baseball.  We had to park much further from the stadium than we usually do, because thousands of participants came to the scene rather than the game, hanging out in parking lots and on the street within shouting distance of stadium drinking and dancing and partying, while tens of thousand more did go to the ballpark, where there was also a fair portion of drinking and dancing and partying, which I have no doubt extended well into the night for many.

Marta and I, staid old sexagenarians that we are, hiked the mile back to our car and then drove home, talking about baseball and the opening of the season, and Opening Day and the opening of pretty much everything else.  I’m confident that at the next game we attend the crowd will be more into the game, but it’s good to know that in the background the turtle (or dove) will keep on singing.

 Appendix

The three things that Ausmus did that generated baseball talk were: (1) employing a shift against Royals 3^rd-baseman Mike Moustakas, in which the Tigers shortstop played behind and between the first and second basemen (Moustakas went zero for four);  (2) using his closer in the top of the 9^th in a tie game, apparently confident (correctly) that the Tigers would score in the bottom of the 9^th to win) and (3) putting in a pinch runner for the Tigers’ relatively slow catcher (not relative to catchers, but relative to ballplayers, as is often the case with catchers) with one on and one out in the 9^th.  The pinch-runner scored the winning run, having advanced to 3^rd on a single.)

Sergeant Pepper’s Lonely Hearts Club Band was released in 1967.  I was nineteen years old, a junior in college.  Like many of that time, place and age, I listened to the album hundreds of times, in various states of consciousness, some of them more conscious than others.  If asked to produce the entire album from memory, prompted only by the song titles, I’d guess that I would get about 98 percent of the words, and all of the melodies.

Which is to say that turning sixty-four, which I did just the other day, is a very big deal for what we called, in the words of another rock song, “my g-g-generation,” myself included.  Lennon and McCartney, only a few years older than me, may have been able to jump over the decades and see themselves at 64, but back in 1967 I could not.  Yet here I am, and in this as in so many other matters, the Beatles got it right.

“When I’m Sixty-four” is a love song.  The singer (without loss of generality let’s call him Paul) is proposing to his girl, offering a life together, looking back upon that life from a vantage point that is maybe forty years away.  As I sing the song today I’m singing it to the girl I’m with now, and have been with for the past 27 years. Sixty-four with her couldn’t be clearer.  It’s my life — yesterday, today, and tomorrow.  In 1967 my act was not sufficiently together to be singing the song to anyone. Taking the liberties with time that are inherent in the song and this rumination upon it, I hear myself singing to the same girl then, and looking back from now.

Now to business.

When I get older, losing my hair,

Many years from now.

Well, older for sure, and many years from then.  I have the good fortune to have what is still a pretty full head of hair.  It’s gray, and it’s thinner and less curly than the Isro that I sported back in the day.  But the point of the line is that at 64 I Iook my age and feel the decades between then and now.

Will you still be sending me a valentine,

Birthday greetings, bottle of wine?

Which is to say, will we be acting like lovers?  Yes. Valentines, birthday greetings, bottles of wine, holding hands at the movies, more.

If I’d been out ’til quarter of three,

Would you lock the door?

I’ve never figured out what this line is about.  Not then, not now.  And as it turns out, the premise is moot.  Except for the occasional redeye, if I’m out after midnight the girl is with me.

Will you still need me, will you still feed me,

When I’m sixty-four?

Well, yes.

{And now the mood changes,  we go to a minor key, and the ebullient clarinet disappears, for the nonce, from the orchestration}

You’ll be older, too.

And if you say the word,

I could stay with you.

This imagining of love forty-years hence is the heart of the song for me now, but was unimaginable then.

{Back to bouncy tune with clarinet}

I could be handy, mending a fuse

When your lights have gone

You can knit a sweater by the fireside,

Sunday morning go for a ride.

A nice traditional division of household sex roles, in which we take care of each other.  What with the advent of the circuit breaker I don’t so much mend fuses and instead provide general tech support, but the sentiment holds up.  And Marta doesn’t knit, but she cooks, which works out well for me, because I eat.  Sunday morning we walk the dogs, or sometimes (more likely Sunday afternoon) go for a canoe ride or a bike ride.  And (see next line) Marta does the garden and digs the weeds.  It is my pleasure to watch and admire. Who could ask for more?

Doing the garden, digging the weeds,

Who could ask for more?

Will you still need me, will you still feed me,

When I’m sixty-four

———-

Every summer we could rent a cottage

In the Isle of Wight, if it’s not too dear.

As it turns out we like to take vacations in different places every year, most recently Scotland, Italy, the Southwest U.S., and the Adirondacks. We haven’t yet tried the Isle of Wight. Another promise from 1967 kept, at least in spirit.

We shall scrimp and save.

Grandchildren sitting on your knee

Vera, Chuck and Dave.

It turns out that we have been somewhat more prosperous than we expected, and we have only the one grandchild, who sits on knees and also Skypes with us, which the Beatles did not contemplate.  In the song, these lines are in the minor key and there is a sadness to them, perhaps suggesting that grandchildren are an insufficient compensation for the decades of scrimping, saving and growing older.  Might it be that the 20-something Beatles who wrote the song already saw the awareness of mortality that comes with being 64, and that they couldn’t yet see the pure joy of grandchildren?

I have nothing much to say about the rest of the song — it’s fun, and it rhymes, and it’s back in the major key with the bouncy meter and the ebullient clarinet.   He asks for her commitment and ends with “Will you still need me, will you still feed me, when I’m sixty-four?”

The 45 years between then and now have zoomed by.  I think it’s safe to say that every time the number 64 (a beautiful number in so many ways, a power of 2, the last one that I shall see) has hit my consciousness in those years I have hummed a few bars of this song.  It gets better all the time.

A few weeks ago Publishers Weekly published an adaptation of my June 9 blog post on the Georgia State trial on their “Soapbox” page.  This week’s issue of PW contains a reply by Tom Allen, President of the Association of American Publishers.

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.

The following post, which provides a constitutional analysis of aspects of the Georgia State case, is written by Bobby Glushko, J.D., who is currently Associate Librarian in the Copyright Office of the University of Michigan Library. I find Glushko’s views to be illuminating and important. In this post, Mr. Glushko speaks for himself, and not for the University of Michigan, or for me.

Anyone who is even casually aware of the controversy surrounding the litigation between Cambridge et al and Georgia State University, has almost certainly read some of the very cogent and compelling arguments against the injunction proposed by the publishers. I agree with many of those critiques, and, at the risk of piling on, am adding another: the proposed injunction is a violation of the First Amendment prohibition against restricting speech.

Copyright law is fundamentally about compromise, about fairness, about the balance between providing incentives for authors to create and the ability to harness that creative energy for the betterment of society. Markets abhor a monopoly, but yet we give authors a limited monopoly on their writings so as to better enable them to create for a living. We need laws to protect rights in non-rivalrous goods;objects that can be used by multiple people at once without reducing the ability of others to partake in them. (For example, a candy bar is rivalrous, if I eat it, you cannot. But a sunset, or a song can be enjoyed by all.) But we limit those laws in order to allow society to more efficiently capture the benefit from those goods. It’s really quite an elegant system, and while you can criticize the particulars, creativity, writing, and “the progress of science and the useful arts,” seem to have been proceeding along quite well for the last 200 years.

Authors create, and users use; some of these uses generate profits for the authors, (or, more realistically, their publishers), and some of these uses do not. Sometimes the system swings out of balance. For example, as neat as it was to be able to download any song in the world from Napster, it was also a massive hub of copyright infringement. The balance was upset, the courts intervened, Napster was shuttered, and the balance was restored. (I’ll note here that I’m aware that balance does not often make all parties at the table happy, and that reasonable people can disagree as to where exactly the fulcrum on the balance point should lie). The proposed injunction in the GSU litigation is a threat to copyright’s balance of a far greater scale than was posed by Napster and its ilk. In their proposal, plaintiffs seek to overturn all of the internal and external limits on the exclusive rights granted by copyright, replacing them instead with a mechanical, restrictive, and frankly unworkable system.

Copyright law does not operate in a vacuum. Alongside the internal limits to the rights granted to authors by the Copyright Act, such as the limitations provided by fair use, and the rights granted to libraries, people with disabilities, etc., there are also external limitations, notably the First Amendment. Stating that “Congress shall make no law…abridging the freedom of speech,” the First Amendment limits the capacity of Congress and the courts to restrict the free expression of ideas. Copyright law limits expression by prohibiting some uses of copyrighted works without permission from the copyright holder. Many of the exceptions in the exclusivity of copyright – fair use, classroom use – exist in order facilitate free speech about copyrighted work. Using copyright to effect a ban on speech can arguably be seen as a violation of the First Amendment, as a prior restraint on speech.

First Amendment challenges to injunctions in copyright cases are nothing new, and courts have not proved particularly receptive to them. [1] But the proposed injunction in the GSU litigation is a new beast indeed. Prior first amendment challenges to copyright injunctions have dealt with discreet acts of infringement and identifiable actors, for example, the publication of a possibly infringing book or film. And while courts have expressed deference to the first amendment in these cases, they have not found injunctions to be restraints on speech, because the infringing speech was not protected by the first amendment, as the first amendment protects the facts and ideas underlying the expression, not the actual expression itself.

The scope of the proposed injunction in the GSU litigation goes far beyond existing case law, as it limits all speech, by all actors, in any way associated with GSU. As such, it is not a limit on a particular instance of suspected infringement, but a limit on all potential speech going forward. Prior injunctions have been limited in scope and have stopped the publication of existing works; the proposed injunction chills all future expression coming out of GSU, and leaves no space for the comment, criticism, and dialogue that lies at the center of constitutionally protected speech. In order to open up a new business model, the plaintiffs ask the court to shake the foundations of the balance between incentive and expression; and the price of doing so is simply too high

So, why is this important? Essentially, what is at stake here is the fundamental balance between those who use copyrighted works and those who create them. Reasonable people can disagree over how long copyright should last, or how much deference should be given to fair use; that’s the beauty of our system. The proposed injunction would overturn all that Congress and the courts have crafted over the last two hundred years and replace it with a mechanical regime designed to maximize profits for the large publishing houses. This “solution” to the GSU litigation is not only unworkable, it’s unconstitutional and wrong. Asking academics and universities to surrender their statutory and constitutional rights so as to allow publishers to more efficiently extract revenue from them does nothing to advance the progress of science and the useful arts, and will only further illustrate the absurdity of the state of academic publishing, where universities pay academics to write articles, which they edit, peer review, and give to publishers for free, and which are then sold back to universities for substantial sums. Hopefully Judge Evans will see this, deny the proposed injunction, and help bring this litigation to a resolution that respects both sides of the copyright balance..

[1] For example, see Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), where the Second Circuit upheld a lower courts ruling prohibiting the publication of the book 60 Years Later Coming Through the Rye, a book based on the events in Catcher in the Rye.

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 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.

In a recent issue of Publisher’s Weekly.com, my friend Siva Vaidhyanathan characterized my support of the Google Books Project in ways that I must take issue with.  (He also said many things that are  insightful, wise and witty, and the whole interview is worth reading.)

Here’s the part that motivates this post:

PW: But Michigan librarian Paul Courant, for example, has argued passionately that Google’s books project offers great public benefits, making millions of long-lost books discoverable and accessible, work libraries could never have done so expeditiously. Doesn’t he have a point?

SV: I’m sympathetic to the expediency argument, but I’m also impatient with it. Courant’s argument is based on two assumptions that I take issue with. First is the assumption that the cost to university libraries would be low. We know now that the cost to libraries has actually been significant, and the benefit has been overstated. We also know now that Google wants to be a bookstore, not a library.

Second, the premise that no one else was ever going to do this is an argument by fiat, a classic fallacy. If we, the people of the world, the librarians of the world, the scholars of the world, the publishers of the world, decide that we should have a universal digital library, then let’s write a plan, change the laws, raise money, and do it right. If we’re going to create this with public resources, let’s do it in the public interest, not corporate interest. There’s nothing wrong with Google pursuing a books project, of course, and, yes, there are benefits. But we have to understand that what Google has created is first and foremost for Google, and I think a lot of people have fooled themselves about that.

I respond to Siva’s two points in order.  First, my support for the project is not based on an assumption that the cost to university libraries would be low, but rather on a calculation that the costs are and have been substantially less than the benefits.  The leadership of two dozen or so major research libraries seem to agree with me.  The unsupported assertion that “we now know that the cost to libraries has been significant, and the benefit has been overstated” is, well, an unsupported assertion.  For the University of Michigan Library, the cost has been material but not overwhelming.  We have used staff time, organizational effort, and there has been some disruption of our activities.  But the benefit has been far larger, in the form of making the content of our collections widely searchable, the public domain content readable by anyone, giving us a backup copy of our collections, and in seeding the HathiTrust, which is a cooperative digital library (not a bookstore) with some fifty-two academic libraries as members and a collection of over eight million volumes that is growing by tens of thousands of volumes a week.  (Check out HathiTrust.org).  Siva is welcome to discount these benefits, but first he should count them.

Second, although it’s an honor to be subject to a “classic fallacy” after all of these years as a college professor, I don’t quite see the fallacy.  Just who, other than Google, has been willing to step up and do the job?  And in what pre-Google fantasyland might we have expected the publishers of the world to show interest in making their backlists  part of a universal digital library?  And why would we believe that we can go to Congress and get improvements in copyright law when every time Congress touches copyright law it gets worse?  (Indeed, I would suggest that the Google books project, by showing the value to millions of citizens of digital access to a large corpus of published work, is more likely to move Congress than the excellent public policy arguments that have been adduced, to deaf ears, by the likes of librarians, Siva, and myself.)

I continue to believe that had Google not embarked on this project, and showed the world that mass digitization of library collections could actually be done, we would still be counting the corpus of digitized work by tens of thousands instead of millions.  To be sure, my assertion here is not subject to proof.  We cannot know what would have happened had Google not gone into the scanning business.  What we do know is that no one else was doing it.  And no one else is doing it.  That’s not a fallacy, but a fact.  Actually, two facts.  Maybe someone else would have done it.  But when?  I’m a lot older than Siva, so I’m the one who gets to be impatient when it comes to providing the riches of the world’s academic libraries to the people of the world.

My friend and colleague Robert Darnton, Director of the Harvard University Library, has lately been championing the creation of a National Digital Library (for background, see this, and this), and I wholeheartedly support any plan that coordinates the efforts of our nation’s foundations and research and cultural institutions toward providing ubiquitous and permanent digital access to the cultural and scholarly record.  (Disclosure:  I was present at the meeting that Bob Darnton convened at Harvard that is described in the Chronicle article linked to above.)

The University of Michigan Library is a founding member HathiTrust, which brings together the resources and digital collections of a large and growing number of public and private libraries and institutions. The HathiTrust does not claim to be a national library, because it aspires to be much more than a national library. Certainly, HathiTrust’s collections and activities could be part of an effort that addresses the grand challenge Darnton has described.

Darnton suggests that a National Digital Library would make “the cultural patrimony of this country freely available to all of its citizens.”  Exactly what this would mean in practice depends on many things, not the least of which are what we might mean by “cultural patrimony” and “available.”  I suggest that the notion of a national collection based on any nation’s “cultural patrimony” is far too narrow.

The collection of the University of Michigan Library, for example, contains works on papyrus and other ancient media that are millennia older than this country. And down the hall from the Papyrus Collection is the Map Library, which contains printed maps from around the world, as well as the global data that is the foundation of modern geospatial information systems.  It simply doesn’t make sense to divide this country’s cultural patrimony from that of the rest of the world.  (And I have to admit that I’m not wild about the word “patrimony,” either.  Many have suggested that “heritage,” would be better, and I believe that Robert Darnton would accept this as a friendly amendment.)

In any case, libraries don’t distinguish between “our” cultural heritage and the cultural heritage from the rest of the world. Libraries, to the extent that their collection efforts are purposeful—and mostly they are—acquire what is intellectually and culturally important, and what is wanted or needed by their clients. This is reflected in the fact that more than 50 percent of the content in the HathiTrust Digital Library—whose partners as of this writing all reside in the United States—is written in a language other than English.  The same is true of Harvard’s libraries, which suggests that Darnton’s idea of  “cultural patrimony” is more inclusive than the words themselves might seem to indicate.

Even the Library of Congress—a government institution—expresses its mission in broader terms. “The Library’s mission is to make its resources available and useful to the Congress and the American people and to sustain and preserve a universal collection of knowledge and creativity for future generations.” (The italics are mine.)

A universal collection of knowledge. What libraries have always striven to provide, and what library patrons have always desired, has now been made possible by new information technologies.  This is the collection that I believe that Bob Darnton is seeking to build, and just such a collection is being collated by the growing partnership that is HathiTrust.

Darnton says he hopes “that the HathiTrust could somehow evolve to become a fundamental building block of a future digital library,” and he goes on to declare that this would “require the permission of Google.” I’m happy to concur with his ambition and also to report that we already have the permission we need from Google to build such a library. U-M’s original agreement with Google, and Google’s subsequent similar agreements with other libraries, contain clauses that permit us to share our Google-digitized copies with other libraries. HathiTrust rests upon this foundation, and Google’s authorization is explicitly confirmed in Michigan’s 2009 amended agreement with Google.

What Google cannot authorize, because it is not in its purview, is the unfettered circulation of in-copyright digital material. I turn to this, what Darnton calls the “vexed question,” and which he prefers to set aside for a later stage of the National Digital Library initiative, because the solution to this problem, the answer to the vexed question, is the sine qua non of any digital library—local, national, or universal—that aims to make the entirety of its content readily available to all comers.

The clause in the U.S. Constitution that is the foundation for copyright law gives Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”. Copyright law as it stands is working against the very progress that our founders intended to promote—progress that arguably is itself our national cultural heritage, rather than any collection of material, no matter how comprehensive. Restricted access to digital libraries is only one example of current copyright law’s stifling effect, but it’s an important one. The HathiTrust partners are working on the problem, but it’s going to require a powerful coalition and legislative action to make the requisite changes. I hope the representatives of the foundations, libraries, and cultural institutions that have been gathering to discuss Darnton’s proposal will direct the bulk of their energy and resources into this effort, so we can together give the world the universal digital library it deserves.

I was in Powell’s Books in Portland Oregon today, basking in the warmth of all of those books and all of the people basking in the warmth of all of those books and bookish people. I couldn’t remember the author of the book that I was looking for, but I knew the title. There was a line in front of the nearest computer screen. So I pulled out my iPhone, went to the Amazon.com app, and looked it up. And bought a very nice used copy. Just like the good old days only different.

After extended deliberation and over twenty years after its official retirement, the University of Michigan Library decided recently to divest itself of the old card catalog — 108 cases containing over 12 million cards. The story was fairly widely covered, with a piece in the official University Record and another in the local digital newspaper, annarbor.com. The latter even has a nice picture of both me and a small chunk of the catalog.

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.

From the very beginning, one of the most exciting possibilities of the Google Digitization Project was its potential to open up vast stores of text to a group of users to whom it had previously been inaccessible: people with visual impairments and print disabilities. Before Google (B.G.), students and scholars who wanted access to the contents of a print book had to request that the book be converted to braille, or digitized and OCRed, a special one-at-a-time process that took several weeks. This required lots of advance planning and significantly slowed the pace of study and research for these users. After Google (A.G.), with an increasing amount of the total published content in the world available digitally, that tedious process is no longer necessary. Students and scholars with print disabilities can experience the flow of moving from resource to resource without impediment for the first time ever. Here’s how.

Over the past couple of years, The University of Michigan Library has been working on a project to improve the accessibility of our digitized texts for visually impaired UM students, staff, and faculty. First, the team made accessibility improvements to the standard public interface for the HathiTrust Digital Library (formerly known as MBooks) and developed a text-only interface geared toward people with print disabilities that is optimized for screen reading software. Next, and most important, the Library figured out how to grant access to the full text of digitized books for qualified patrons, regardless of the book’s copyright status.

Like many other universities, the UM Services for Students with Disabilities (SSwD) has long offered book digitization service to students with disabilities upon request. This is explicitly allowed under section 121 of U.S. Copyright law.

Our new system basically does the same thing but on a much larger scale. The HathiTrust Digital Library currently provides access to over 4 million digitized volumes and will grow to over 10 million – visually impaired students will have full-text access to all of these volumes. We consider this just the beginning. Over the next year, we will continue to work on improvements to the interface and conduct more user assessments, and our HathiTrust partners are working together to create a framework through which we can offer this service to users at their institutions.

Once a University of Michigan student registers with the UM Services for Students with Disabilities any time she checks out a book that has been digitized, she will automatically receive an email with a URL. Once the student selects the link, she will be asked to login. The system will check to see whether the student is registered with SSwD as part of this program, and ensure that she has checked out this particular book. If the student passes both of those tests, she will get access to the entire full-text of the book, whether it is in copyright or not, in an interface that is optimized for use with screen readers. The Library’s Blog for Library Technology has more details on the technical elements for those who are interested.

Our system was endorsed by the National Federation for the Blind as a model for how libraries can serve visually impaired patrons in the digital age. It’s a great example of how digital technologies can extend the ability of libraries to serve their clients, and to extend learning and teaching beyond traditional populations.

As with the production of so many things that are of broad public value, this work could not have happened without the efforts of a committed champion. I am pleased to recognize the commitment and skill of Jack Bernard, an attorney in Michigan’s Office of the General Counsel, who has provided substantive and legal leadership in our efforts to make our collections accessible to our students with print disabilities. Jack’s efforts were recognized by the American Library Association, which gave him the L. Ray Patterson Copyright Award in 2009.