diana.shull

It’s been a while. Enough to look like this is over.

It remains important to me to think: today, I might blog. And to think: I have a place to do it in.

So why don’t I more often? That is the thing on my mind today.

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Reason #1: Because I am storing up some of the thinking that went into this blog for other, as yet unseen, purposes. First, for the Aydelotte Foundation, which I presently co-direct. We’re going to go live in the spring with a new website, and I’ve been writing a lot of content for that, much of which would previously have been grist for my blog mill. Second, I’m working on a long-form manuscript that in some ways arises out of fifteen years of blogging, and that’s absorbing some of the energies that would have gone into this space.

Reason #2: Because the way we’ve come to read in our present public sphere is both boring and terrifying. This N+1 essay in their Fall 2018 issue helped me understand a lot of my own distress. There seems to be almost no appetite now among public readers for interesting, stylistic or exploratory writing. Readers swarm over everything now, stripping any writing down into a series of declarative flags that sort everyone into teams, affinities, objectives. There’s no appetite for difficult problems that can’t be solved or worked, or for testimonies that give us a window into a lived world. No pleasure in the prose itself, and thus none in the writing of it.

Reason #3: Because we seem to arrived at a point where justice means visiting extreme precarity on everyone who says anything rather than making it possible for previously suppressed voices to speak safely. This is a familiar inflection point in struggles for social justice: we despair of a transformation that emancipates and so we settle for a transformation that at least tries to spread the misery. That might even be the right thing to do, for a variety of reasons. Making the powerful fear the consequences of speech that discriminates or hates or creates fear may be all we can do for now. There have been plenty of opportunities for the powerful to instead take a more hopeful and constructive interest in the voices of people who were long excluded from the public, in sentiments that have been unheard, and that opportunity was long unpursued. But the consequence in our current public discourse is that almost everyone is one day away from having someone paint a bullseye on them, deserving or otherwise. There can’t be any pleasure or joy in public writing in our present mood. Moreover, the kind of provocative hooks that I used to really enjoy setting into my blogging feel risky and I don’t have the same taste for risk that I used to. I feel vulnerable and tentative and melancholy even when the visible sociologies of my life and my writing should suggest otherwise.

Reason #4: For all that amateur blogging has faded, there is still a tremendous volume of online writing, and its speed has accelerated. By the time I have thought through my take on something that’s at least a bit timely, it’s been thoroughly masticated and spit out in online conversations. The last thing we need is more roughage to block up the digestive systems.

Reason #5: As I’ve said before, I know too much now and that is producing some of the expected inhibitions–it feels as if almost anything I might say would be taken to be subtweeting even when it’s not.

Reason #6: Everyone I respect who writes online feels smarter and clearer than I feel I am myself. I feel less confident in what I think I know and more conscious of the vastness of the things I do not know. That I know that this is a common feeling does not particularly relieve me of having it.

Reason #7: It’s hard to feel like there’s a point to public writing at the heart of Trump’s ascendancy. Certainly there’s no point to even trying to speak to self-identified conservatives who have aligned themselves with Trump: the will-to-power mendacity and moral vacuity melts anything like honest engagement like a butterfly tossed in a furnace. But it is not merely Trump and his followers. When is the last time you can recall seeing anyone who was meaningfully persuaded by arguments or evidence that contradicted or challenged a belief or position they had previously articulated? When I see people telling me that the only way to deal with people who hold dangerous, untrue or morally bankrupt views is to engage them in a persistently reasonable way, to have a dialogue, I can’t help but think that this is just another untrue idea. Or at least it is a kind of religious dogma by self-anointed rationalist thinkers. It is not an evidence-based proposition about how people shift their values or come to hold new thoughts or ideas. It doesn’t matter whether we are talking about people with whom one has personal or familial standing or total strangers, whether this is about a neighborhood or a nation. What passes for reason and evidence among educated readers and writers often feels as if it is just a value system local to them, and no more likely even so to lead to thoughtful changes in perspectives or beliefs among them. I feel no more likely to persuade a person who is in every respect a peer to change a view they have committed to, no matter how strong my arguments or evidence might be, than I am to persuade a stranger with completely different values and social location. And yet, I feel I am persuadable: that I change what I think about specific issues and arguments quite frequently in response to what others say and argue. Perhaps I am wrong even about myself; perhaps this is an unearned vanity. If I am right, then it feels as if I have chosen the worst strategy in Prisoner’s Dilemma: vulnerable to persuasion in a world that increasingly sees persuadability as a vulnerability to be exploited.

And yet, I remain hopeful about blogging. I am not sure why. I am not sure when. This remains open for business, nevertheless.

Jonathan Haidt is consistently unimpressive.

Responding in this Chronicle piece about Jeffrey Adam Sachs’ great essay for the Niskanen Center, Haidt concedes that the speech-related episodes that he and his pals get so agitated about are confined to a relative handful of highly selective institutions. The evidence for a significant shift in attitudes among all college-attending students is thin and contested.

But Haidt says that since students at elite institutions are going to be the leaders of tomorrow, we should be disproportionately worried about how they think.

This is a classic kind of fallacious reasoning in populist social science that seeks to stoke up some form of middlebrow moral panic. I first became familiar with it while researching claims by social scientists during the 1970s about the effects of “violent” cartoons on children.

The argument runs like this: children or young people are being moved away from adults on some kind of important social norm by a lack of institutional vigilance–that it’s up to the adults to control what children and young people see, say or do so that social norms will be protected. There’s an odd kind of philosophical incoherence somewhere in there in many cases–a kind of softly illiberal vision of parenting and education that is invoked in many cases to defend adult liberalism as the social norm worth preserving–but leave that for the moment.

What’s more important in terms of social science is that this is a *prediction*: that if the external stimulus or bad practice is permitted, tomorrow’s adults will have a propensity to behave very differently in relationship to the norm being invoked. The anti-children’s television crusaders said: tomorrow’s kids will be more violent. Haidt is saying: tomorrow’s kids will have less respect for free speech.

There’s a sleight of hand going on here always. Because usually this is being said against a *contemporary* crisis about the issue at hand. The television crusaders were responding to the violence of 1968-75: the Vietnam War, protests on campus, rising rates of violent crime. But the people involved in those forms of violence *didn’t watch cartoons on Saturday morning*. They were the previous generation. The people who are most threatening to free speech in the United States today are not 20-year old Middlebury students: they’re the President of the United States and his administration, the Congress, the people in charge. People who grew up under the norms that Haidt and Brooks etc. are trying to defend.

So it turns out that past dispensations that were allegedly friendly to the norms being defended actually produced the most serious threat to them.

And of course, it usually turns out that the prediction is wrong as well. Violence has been steadily more and more represented in mass media for children and adults since 1965; rates of violent crime have gone steadily down since the mid-1970s. You can always claim in a particular case that there’s a particular link–a mass shooter who turns out to have played Call of Duty or whatever–but that’s not how a general social scientistic prediction about a variable and a population works. If watching cartoons where bad guys got punched in the face made you more likely to be violent, that’s a prediction that there would be more interpersonal violence overall in the future. It didn’t happen. That’s not how it works. The same thing here: if free speech norms are enduring and important, I guarantee you that a bunch of kids at Middlebury standing up and turning their backs on Charles Murray does not represent a future trend that will affect a generation. Frankly, anything Middlebury or Swarthmore students do will have negligible collective impact–they are not a good marker of generational typicality.

It might even be that actually testing out the propositions embedded in a belief in free speech rather than dully worshipping them as received orthodoxy produces a more meaningful lifelong relationship to them. It certainly is that Haidt and others are producing a nostalgic myth about where a commitment to free speech comes from.

This is not the first time I’ve gone quiet on this blog simply because I was busy. Fall 2017 was in many ways the busiest semester I’ve ever had at Swarthmore: I taught two courses, I chaired my department, I became the co-director of the Aydelotte Foundation, and I sold my house and moved.

But I have gone quiet for other reasons as well. I am struggling to understand what the good of writing in public is at a time when I’m prepared to encourage others to do so.

When I began blogging in a pre-WordPress era, I was already a long-time participant in online conversation, all the way back to pre-Usenet BBSs, including the pay service GEnie. So I think I held no illusions about what were already problems of long-standing in online culture: trolling, harassment, mobbing, deception, anonymity, and so on.

Nevertheless, I started a blog for two major reasons. First, to have an outlet for my own thinking, as a kind of public diary that would let me express my thinking about professional life, politics, popular culture and other issues as I saw fit, and perhaps in so doing keep myself from talking too much among friends and colleagues. I don’t think I’ve succeeded in that, because I still overwhelm conversations around me if I’m not thoughtful about restraining myself.

The second was to see if I could participate usefully in what I hoped would grow into a new and more democratic public sphere, one that escaped the exclusivity of postwar American public discussion. I think I did a good job at evolving an ethic for myself and then inhabiting it consistently. That had a cost to the quality of my prose, because being more respectful, cautious and responsible in my blogging usually meant being duller and longer in the style of my writing.

In the end, I feel as if both goals have ended up being somewhat pointless. It’s not clear to me any longer what good I can contribute as a public diarist. Much of what I think gets thought and expressed by someone else at a quicker pace, in a faster social media platform. More importantly, the value of my observations, whatever that might be, was secured through combining frankness and introspection, through raising rather than brutally disposing of open questions. This more than anything now seems quaintly out of place in social media. I feel as if it takes extreme curation to find pockets of social media commentary given over to skepticism and exploration, through collectively playful or passionate engagement with uncertainty and ambiguity.

More complicatedly, the more I am tied to my institutional histories and imagined as being a “responsible agent” within them, the harder it gets to talk frankly about what I see. It was comforting to think that almost no one read my blog and almost no one cared about it, in some sense. Now I’m only too aware that if I speak, even if I’m careful to abstract and synthesize what I’m observing, I can’t help but seem as if I am testifying about the much larger archive of real experiences and painful confidences I have been entrusted with. If I abstract too much, I find that friends and colleagues politely gaslight me: I can’t have seen what I think I’ve seen. But I can’t be more direct, and I don’t want to be. Trying to observe real stories and real problems with some degree of honesty can curdle into the settling of scores, and can tempt people–older white men especially–into a narrative of institutional life in which they are always the heroes of the story. Some stories and experiences explored honestly end up with everyone muddling through with good intent; others end up implicating everyone in certain kinds of bad faith or short-sightedness, including the people doing the exploring.

This brings me to the second goal: to be part of a new and more democratic public sphere. I have been for thirty years a person enthusiastic about the possibilities and often the realities of online culture. I am losing that enthusiasm rapidly. It’s not just that all the old problems are now vastly greater in scope and more ominous by far in the threat they can pose to participants in digital culture, but that there are new problems too. The threat to women, to people of color, to GLBQT people, is bigger by far, but even as someone who has all sorts of protections, I find myself unnerved by online discussion, by its volatility and speed, by the ways that groups settle on intense and combative interpretations and then amplify both. I remember only dimly that for a long time I saw myself as trying to create bridges in conversations to online conservatives. With a blessed few exceptions, those conversations mostly felt like agreeing to trust Lucy to hold the football steady one more time, like being the mark in a long confidence game whose goal was to move the Overton window. What did I think I was doing talking to David Horowitz, for example? Or writing critiques of ACTA reports as if anyone writing them cared remotely about evidence or accuracy? And yet I’m not feeling that much more comfortable about online conversation with people with whom I ostensibly agree or among whom I have allegedly built up long reservoirs of trust. That sense of trust and social groundedness felt very real as recently as five years ago, but now it feels as if the infrastructures of online life could pull any foundation into wreckage in an instant without any individual human beings meaning or wanting to have that happen.

I almost thought to critically engage a recent wave of online attacks on a course being taught by my colleague here at Swarthmore. I even tried one engagement with a real person on Twitter and for a brief moment, I thought at least the points I was making were being read and understood. But the iron curtain of a new kind of cultural formation snapped down hard within three tweets, and it was difficult for me to even grasp who I had been talking to: a provocateur? an eccentric? a true believer? The rest of the social media traffic about the issue was rank with the stink of bots and 8chan-style troublemaking. Even when it was real people talking, even if I might be able to have a meaningful conversation with them in person if I happened to be in their physical presence, nothing good could come of online engagement, and many bad things could instead happen.

So I need to think anew: what is this space for? What’s left to say? Public debate, per se, is dead. Being a diarist might not be, but I will need to find ways to undam the river of my own voice.

I still regret to some extent that at the beginning of Swarthmore College’s Aydelotte Foundation (before it received its current name) we decided that a good initial test of the ability to have conversations across and within disciplines was best suited to a shared college-wide reading of Jonathan Haidt’s flawed book The Righteous Mind. I would rather have found a book that didn’t frustrate and irritate most of the participants.

I don’t regret the conversations, though. And the odd thing is that I keep coming back to the book with new complaints against its claims, so it did help me actually rethink and refocus some of how I observe and imagine political life.

Haidt argues that liberal political dispositions, which he views (like other political dispositions) as substantially subconscious and intuitive, are unresponsive to blasphemy or sacrilege, that liberals do not cross-wire deep emotional responses connected to disgust or repulsion to politics, do not have strong notions about the sacred and the profane as a part of their subconscious script for reading the public sphere and political events.

My colleague and friend Ben Berger pointed out during one of our discussions that this observation seemed fundamentally wrong to him–that people can hold things sacred that are not designated as religious, and that many liberals held other kinds of institutions, texts, and manners as ‘sacred’ in the same deep-seated, pre-conscious, emotionally intense way, perhaps without even knowing that they do. Ben observed that Haidt might be missing that because many liberals and leftists did not feel deeply trespassed against in this way in their own favored institutional and social worlds, and usually looked upon a public sphere that largely aligned with their vision of civic propriety and ritual.

I’m not opposed per se to Haidt’s insistence that some of our political affiliations and reactions stem from deeper, non-conscious cognitive predispositions: I just think he woefully mismaps those findings to real politics, to history, to institutions, and so on. I think Ben’s point now seems deeply confirmed. Why are so many of us feeling deep distress each day, sometimes over what seem like relatively trivial or incidental information (like Trump pushing aside heads of state?) Because Trump is sacrilege.

Trump is the Piss Christ of liberals and leftists. His every breath is a bb-gun shot through a cathedral window, bacon on the doorstep of a mosque, the explosion of an ancient Buddha statue. He offends against the notion that merit and hard work will be rewarded. Against the idea that leadership and knowledge are necessary partners. Against deep assumptions about the dignity of self-control. Against a feeling that leaders should at least pretend to be more dedicated to their institutions and missions than themselves. Against the feeling that consequential decisions should be performed as consequential. Against the feeling that a man should be ashamed of sexual predation and assault if caught on tape exalting it. Against the sense that anyone who writes or speaks in the public sphere is both responsible for what they’ve said and should have to reconcile what they’ve said in the past with what they’re doing in the present. These are emotional commitments before they are things we would defend as substantive, reasoned propositions. They’re interwoven into how many of us inhabit social class and working life, but sometimes spill over both class and work to connect us with unlike people who nevertheless have similar expectations about leaders and public figures.

Even when we intellectually understand that our sense of the sacred in civic and public life may be dysfunctionally entangled in stifling technocratic arrogance or neoliberal visions of governmentality, even when we believe ourselves to be open to a more carnivalesque or improvisational mode of public leadership, we still have very deep feelings about what’s proper and improper, righteous and demonic, sanitary and repellant. And Trump is violating every intuition, every deep reservoir of feeling we have about how one ought to be a man, a leader, a symbol of our national identity. We are not distracted when we respond to those feelings. In fact, we might be better off to articulate our responses as feelings, as intense and profound and utterly righteous feelings.

The lawsuit is really a rather local affair; an action brought by Louisiana State University against Elsevier alleging breach of contract.  But the facts raise significant questions  for all Elsevier customers, and especially for public universities that do business with the publishing giant (which is to say, all of us).  Even more significant, I think, is what the specific circumstances, and some of the comments made about the lawsuit, tell us about the future of scholarly communications.  In my mind, we have reached the “enough is enough” point with Elsevier.

By now many will have already seen news reports about the lawsuit; there are stories and comments here, here and here.  So I don’t need to go deep into the details of the case.  Suffice it to say that the dispute centers on whether or not LSU’s campus subscription agreement with Elsevier includes the School of Veterinary Medicine (SVM).  For some while the SVM did have a separate, duplicate contract with Elsevier.  Elsevier, of course, loves such double-dipping and appears to actively encourage it. In this instance, new leadership at LSU officials determined that they could let the duplicative contract lapse, because the campus contract so clearly includes the SVM.  Recent tweets from Elsevier have denied this, but the agreement is an attachment to the public complaint that LSU has filed, so anyone can read it and discover that the SVM is included in three distinct ways.  First, the SVM is included in the geographic identification of the “sites” covered by the agreement, since the SVM is located on the main LSU campus in Baton Rouge.  Second, the students and faculty of the SVM are included in the count of users which forms the basis for the pricing in the agreement.  Finally, the designated IP ranges in the campus agreement include the IP ranges for the Vet School.  Frankly, this is an easy call, and Elsevier’s breach when they shut down access for some of those designated IP addresses seems quite clear.

The approach that Elsevier is taking seems to be based on the fact that the SVM library at LSU has a separate budget.  The company appears to believe that each and every library budget on an academic campus must include a substantial slice for Elsevier, and even their own contracts should not be allowed to stand in the way of their fundamental rapaciousness.  This is precisely why I believe we must go the other way, by extricating ourselves as academic institutions from any financial involvement with Elsevier.  Elsevier simply does not care about scholarship, content or access; they only care about revenue; this makes them an unacceptable partner in the academic enterprise.

During the course of the negotiations that led up to this lawsuit, LSU officials heard what many of us have heard, explicitly or implicitly — “you will never pay Elsevier less.”  This is reflected in the “commercial solution” that Elsevier has proposed, which would require LSU to subscribe to $170,000 worth of journals they do not need or want, and to pay nearly as much as the separate SVM contract cost (comically, Elsevier uses that “nearly” as a way to call this proposal, which would needlessly cost LSU $200,000, a “savings”).  None of this is surprising; all librarians know that Elsevier will negotiate about anything but price, and that their view of their entitlement is the unmovable foundation of all negotiations with them.  The LSU situation, however, really puts into sharp focus Elsevier’s insistence that it, not the institution, must control spending and access decisions.  Ultimately, If Elsevier’s financial and subscription demands are permitted, they — a foreign corporation with no values other than profit — will shape what scholarships we can give, what research we can done, and which faculty get tenure.  This is not acceptable.

Even more unacceptable are the implications of Elsevier’s decision not to accept the service of process in this lawsuit at their New York offices.  The LSU agreement, like all contracts with public institutions in the U.S., has a clause that designates the law of Louisiana as the governing law for the agreement.  But Elsevier is now saying that, as a Dutch company, they must be served in the Netherlands using the complex processes dictated by the Hague Convention.  This is NOT a normal procedure in this kind of lawsuit, and it is probably just a bullying tactic intended to draw out the lawsuit and raise its cost for LSU, in hopes that the University will back down.  Nevertheless, it ought to make all U.S. universities ask ourselves if these clauses actually have any meaning.  If Elsevier reserves to itself the right to interpret everything in its agreements unilaterally in its own best interests, the legal requirement that state institutions only submit to the law of their own state may not be met, even when Elsevier agrees to insert such clauses.  We simply may not be able, as a matter of our own state laws, to enter into an agreement with a company that behaves this way.

In the last few weeks, I have had the opportunity to interact with two lawyers from outside of academia who have each studied the situation we all find ourselves in when we try to do business with Elsevier.  From very different perspectives and based on different legal situations, both lawyers arrived at the same conclusion — you cannot do business with this company.  Both recommended that American universities need to find ways to extricate themselves from relationships with Elsevier; that we develop strategies to do so as quickly as possible, and that our freedom from Elsevier should be a long-term commitment.

I began to propose the outlines of a long-term strategy in this blog post from last month.  I was interested to see that a short-term strategy was suggested by the the Association of Universities in the Netherlands in a press release that describes their inability to negotiate a subscription agreement with Oxford University Press. They point out five options for faculty researchers in a post-OUP (and, by extension, a post-Elsevier) world: requesting articles through ResearchGate, Academia.edu and other international networks, making direct requests from authors, finding Green OA versions of articles in repositories, using interlibrary loan, and finding OA versions using Unpaywall and the Open Access button.

In recent years, librarians have become very concerned about so-called predatory practices associated with some open access publishers.  These practices, while concerning, are no where near as harmful to the academic mission as are the practices at Elsevier.  We are like that metaphorical frog being slowly boiled.  We have become dependent, or at least we believe we are dependent, on Elsevier, and cannot make the decision that it is time for us to jump out of the pot.  But the water is way too hot right now, and we must, for the sake of our institutional missions, jump soon.

 

On May 6, the Library of Congress (LC) was transformed into a disco for one night. Librarians from the Washington, DC, area (as well as 23 other states, Australia, Mexico, and Switzerland) dressed up in their finest ’70s vintage duds and danced the night away under a mirror ball in the Great Hall of LC’s Thomas Jefferson Building. DJs spun tunes, disco diva Gloria Gaynor belted, and—to everyone’s delight—Librarian of Congress Carla Hayden donned a formidable afro wig and mirror ball earrings.

The dance party, and the day-long symposium that preceded it, capped off more than three weeks of Bibliodiscotheque, an in-depth exploration of disco culture and music at the library. Inspired by the induction of Gaynor’s classic “I Will Survive” into LC’s National Recording Registry in 2016, the eclectic range of programming included a live interview with fashion consultant and author Tim Gunn by Deputy Librarian of Congress Robert Newlen, lectures on music from ABBA to African dance, a panel discussion on disco and Vietnam veterans, and a film series.

WHY DISCO?

Why the close look at a musical era that peaked 40 years ago, and that many still disparage as frivolous, fashion-backward, overproduced, and overly commercial?

There is, of course, LC’s current initiative to publicize its treasures and make them accessible to all—largely driven by Hayden, who referred to LC in her swearing-in speech as “a place where you can touch history and imagine your future.”

But there is also the library’s mission since its establishment in 1800: preservation. At Saturday’s panel discussion Alice Echols, professor of history and the Barbra Streisand Chair of Contemporary Gender Studies at the University of Southern California, pointed out that because disco’s early adopters were largely marginalized groups—blacks, Latinx, and LGBTQ—it’s important to document the genre’s progression from transgressive to cliché. Media, culture, and communication scholar Martin Scherzinger added, “Reconstructing history is no mean feat…. It needs to leave traces,” citing Nazi-era European youth dance club subculture as an appropriately resistance-heavy precursor to the urban ’70s clubs where disco made its debut.

MORE, MORE, MORE

The importance of the historical record aside, Saturday’s festivities were nothing but fun. The day began with a discussion of the craft of making disco balls, with craftswoman Yolanda Ayers Baker presenting LC with its very own commemorative mirror ball. Gaynor was given a private tour of standout treasures from LC’s Special Collections of the Music Division, including original scores by Beethoven, Leonard Bernstein, and George and Ira Gershwin. Gaynor treated fortunate guests to a few impromptu measures of “Summertime” and “Our Love Is Here To Stay” before signing LC’s guest book on the page next to Stevie Wonder’s.

Later in the afternoon, Gaynor spoke onstage with Good Morning America’s Robin Roberts about her early experiences with dance music—growing up in Newark, she recalled, the first discotheques were rooms with a DJ ensconced in a closet that had the door sawed off halfway. Gaynor was recovering from spinal fusion surgery and worried for her career when she was approached with the opportunity to record “I Will Survive” by its authors Freddie Perren and Dino Fekaris, so the lyrics resonated for her. The song was an instant hit in the clubs, particularly New York’s Studio 54, and the rest is disco history.

Gaynor offered up a heartfelt and stirring acceptance speech, and sang a number from her newest album accompanied by a pianist. As she signed copies of her most recent book, We Will Survive: True Stories of Encouragement, Inspiration, and the Power of Song (Grand Harbor), the dance party attendees began queuing outside LC, displaying lots of glitter, rayon, platform shoes, sequins, and big hair unsubdued by the evening’s drizzle.

The concert and party, presented in association with media company Brightest Young Things, The Recording Academy, the District of Columbia Library Association, and Capital Pride, drew more than 1,400 guests. In addition to headliner Gaynor, featured attractions included two DJs— Adrian Loving and Mike Simonetti—themed cocktails, and a 3-D photo booth (see the hashtag #LCDisco for tweets and pictures). LC’s central reading room held a “silent disco”—a curated selection of songs and ephemera from the era. Everyone, from guests to subject librarians who would not have missed this for the world, agreed: this was not business as usual. But given the library’s roster of upcoming pop-up displays, including Pride In the Library, which will feature items from the Library’s extensive LGBTQ+ collections, and a “Library of Awesome” presence showcasing LC’s comic book collection at DC’s Awesome-Con June 16–18, the institution is certainly stayin’ alive.

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When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.  

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense.  The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations,  but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do? 

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?

The post LSU v Elsevier – Paying Twice (or More) for Scholarship? appeared first on Scholarly Communications @ Duke.

There’s really two things that tipped me into cancellation, actually. One is Liz Spayd, the Public Editor of the New York Times, implying that it’s only rigid leftists who were upset with the hiring of Stephens, and that we weren’t really going to cancel for real anyway. That’s some special condescension right there, and it’s also tactically about the dumbest thing you could say to people who are pissed off. It says, in effect: go away then, we didn’t want you as readers anyway. The second was James Bennet, the editor responsible for hiring Stephens, implying that it’s liberal orthodoxy and close-mindedness to not at least listen to Stephens, and that was Stephens said is within the range of legitimate opinion. Bennet here is acting as if this is a single column rather than the hiring of a writer to fulfill a regular role on his pages. He’s also defending the content of Stephens’ content-less column and doing nothing to acknowledge that the worst offense of this column (and his past editorial writing) is the cheap sophistry of his work. I don’t dislike Stephens’ NYT column because I’m rigidly unwilling to talk about issues and problems with standard climate change science or climate change activism. I taught an entire course that compelled students to read several prominent critics of climate change science and activism, and I regularly pipe up with my own criticisms of climate change activism. There is nothing that pisses me off more than someone who just hand-waves criticism away by implying that the critics are ideologically rigid and inattentive to what was actually said. That too shows a kind of casual condescension for a readership.

So let me be clear: there are several versions of what Stephens seemed to want to say that would be completely acceptable, interesting, legitimate, as far as I’m concerned. As it stands, the column says the following:

1. We’re too certain of too many things
2. We’re too certain of too many things, especially science, because we trust in the data we have and the methods we have for collecting it, like Hillary Clinton’s campaign was
3. Because you see, some things are only about probabilities, unlike other things that aren’t
4. Climate science is only about probabilities, not certainties
5. If climate science is only about probability, not certainty, maybe we shouldn’t act on it
6. After all, we have made many mistakes in the past based on probabilities and science

Folks who read this blog regularly have certainly heard me say some similar things, though often in a very different manner and in different, more specific, contexts. And, I hope in my own case, in an actually searching and open-minded way, rather than as sophistry intended to endorse a particular political orthodoxy. The problem here with Stephens is that all science is probabilistic on some level. I could just as easily say, “There is a probability that the aspirin I take in the morning will suddenly cause an unexpected allergic reaction and I will die within 30 minutes, despite having no prior allergy to it.” It’s true! It doesn’t mean I should never take aspirin again. He makes a big move towards epistemological skepticism to open his column and then applies that skepticism in a highly limited way that doesn’t match the opening.

The column is, as Will Bunch noted, a fact-free nothingburger, intended largely to troll and annoy liberals and then to complain that they’re intolerant of alternative opinions when they get annoyed. What annoys me is a newspaper that’s marketing itself as a vehicle for truth, for ambitious attempts to understand the world, for challenging thinking, playing along with the smack-the-imaginary-intolerant-liberal game. Fuck that noise.

I want to prove that there are alternative versions of Stephens’ column that would be perfectly respectable–where I would readily concede the legitimacy of the opinion and would also regard Stephens (or any other writer) as legitimately expanding the range of what we can argue, and I would submit, most of these would be read in a similarly open-minded or appreciative (if perhaps in some cases puzzled) spirit by many “liberals”.

Epistemological Rebel

1. Do we really know anything?
2. Maybe formal knowledge doesn’t tell us what’s really true about the world and the universe.
3a. Maybe we should trust our feelings and intuitions more and act impulsively on them. (Basically, this is Romanticism and its various 20th Century descendants).
3b. Or maybe we should look for forms of faith and detachment from this world. (Basically, some forms of spirituality.)
3c. Maybe all knowledge is too entangled in the reproduction of institutional and political power. (Basically, some forms of anti-foundationalist philosophy.)
4. This applies to everything, not just climate action or climate science. What does that look like?

Hey, I grant you: this would not be popular with most readers, liberal and conservative. And it would lead in a really different kind of direction for a weekly or regular column. But all of these exist in the world, they’re possible directions for commentary. The point is that this branch recognizes that a general epistemological or philosophical complaint has to be applied generally.

Risk and the Precautionary Principle

1. A vast amount of our collective and individual action involves projections, hypothetical, models, probabilities, intuitions of risk. Not just conservative AND liberal politics, but businesses, families, etc.
2. How do we know how to map our thinking about what might happen to the costs and challenges of acting because of that thinking?
3. Case Studies guided by some consistent clearly-stated principles

E.g., a column that does this every single week, where that’s the entire focus: how do we reconcile what might happen with what we should do about it? Think of the Ethicist column in the NY Times Magazine or maybe the NPR show modelled on Freakonomics as models here. It’s completely plausible–there are a zillion things to talk about under this heading. This solves the problem of Stephens just applying this entire way of thinking once to question a single political plan, and it makes him set down some kind of consistent logic that could gore his own ox. You want to say someone’s an independent thinker, that’s what he’s got to do. This takes understanding probability, of course, and engaging directly with actual projections by climate scientists rather than hand-waving about how they use probability and so it’s not completely certain. One thing that might lead out from that engagement is that the possibility that things won’t be as bad as the mainstream projections would have it is mirrored by a possibility that things will be vastly worse.

Why Don’t People Trust Science? Or Probability? Historical Explorations

1. Science or social science have often been used in the past to justify public initiatives and governmental programs
2. Sometimes they’ve been badly wrong; sometimes they’ve been wrong in smaller and less damaging ways; sometimes they’ve been right
3. Is there anything about the cases of being wrong that we can learn from, if we review them with an open mind?
4. Do scientists need to engage publics differently with an awareness that at least some of these historical errors (or perceived but misremembered errors) are remembered in various ways?
5. Is this specifically one of the issues hampering attempts to move from climate science to climate action?

This is pretty much a kind of column theme close to my own thinking at times on this blog. I think it’s a useful approach. Maybe this isn’t quite a week-after-week theme, but it surely could support a series of 5-10 columns. The point here is to think deeply about what kinds of mistakes have been made, and what the causality of those mistakes might have been. I think there’s a range of examples and underlying causes–and probably to the discomfort of Stephens’ ideology, at least some of them have to do with the intersection of business interests, the economics of higher education, and science. E.g., they’re not “liberal hubris”, but something grubbier and more tied to the ideology of market conservatism and to governmental authority of all types and ideologies. It wasn’t “liberals” who thought it was a great idea to introduce cane toads to control agricultural pests. But this isn’t exclusively so–I’m just as willing to pile scorn on Paul Ehrlich as any Austrian economist might be.

Again, the saving grace is for Stephens or someone like him would involve not chopping off feet and hands to fit a body onto the bed of Procrustes. If a hypothetical columnist wants to argue that climate action plans and policies closely resemble past mistakes in fitting science to policy, some rich and well-chosen examples have to come into play first. Protip hint: polling during the Clinton campaign is not a rich or well-chosen example.

What’s the Debate About Probability and Projection Within Climate Science?

1. Here’s what climate scientists actually say and disagree about when it comes to making projections
2. Here’s what climate scientists actually say and disagree about when it comes to suggesting strategies for mitigation
3. How are we who are not climate scientists to decide which ideas or research to favor? How literate do we have to be to make those judgments?

If Stephens wants to really think about this just with climate science, he could learn a bit about the rather vigorous debate between climate scientists about what kinds of projections and estimations are responsible and which aren’t. And about the caution that many of them demonstrate when they try to match up their most certain projection ranges with possible strategies for mitigation. There’s a fine column or series of columns in that somewhere. But it takes actually knowing something, which doesn’t seem to be a big thing with most of the New York Times‘ regular columnists.

Is It Actually Possible To Care About the Far Future in a Real Way?
OR
Screw It: I’m Alive Right Now and I Want What I Want

1. Nobody has really ever given up what matters to them right now for the benefit of people who aren’t even born yet
2. Seeming examples of that are deceptive (e.g., people who seem to be sacrificing for their kids and grandkids are just hoping that there will be a reciprocal benefit to them and they’ll be cared for in turn; or they are just making a big deal out of a ‘sacrifice’ they had to make no matter what anyway; or it’s about the real actual emotional relationship they have with a real actual person rather than a hypothetical future person). Etc.
3. What would it take to actually have an ethics that was more about the lives of people (and environments) that are two or three centuries ahead? What would we be like if we lived that way?

OR

1. Who cares about a century from now? Let those people solve their own problems.
2. Look at what Americans a century ago left in our laps to solve: a ruinous war that fueled an even worse one, an unregulated and amateurish financial system that caused a global economic disaster that afflicted people for decades, resurgent racism and lynching that still haunts us today, an incoherent distinction between alcohol and other controlled substances that fueled mass imprisonment on one hand and the ravages of alcoholism on the other, etc. Were they thinking about us? No.
3. People can cope with anything, we’ll figure out a way to live with big changes and nobody will really know the difference.
4. Or we won’t, and so what? The dinosaurs didn’t figure out how to stop volcanoes erupting or how to keep comets away. This is just where our evolution led us. That’s the way it goes.

I am completely ok with either of these approaches as something to read if they’re argued in an interesting, stylistically alive fashion. The first is basically what Roy Scranton does in Learning to Die in the Anthropocene; there are other ways to work this terrain than Scranton’s. I have some sympathy for the approach that says: this is actually a really hard problem that most climate scientists and climate activists underestimate because most of them don’t really think a lot about how other people think or feel. I’m not at all sympathetic to the second approach, but I recognize its hard coherence. It’s a legitimate point of view–though its bleakness applies to way, way more than climate action. It’s the kind of thing that doesn’t lend itself to having a political opinion about specific policies–it’s a kind of nihilism that works better as a literary sensibility. But I dunno, a hard nihilist who was brutal and vicious in his/her assessment of EVERYONE would be a breath of fresh air on an opinion page, a kind of 21st Century Mencken.

=====================

The major thrust here is to say: do NOT give me this guff about how sensitive snowflakes don’t want to hear unconventional thoughts or diversity of opinion. It is the laziness and conventionality of Stephens’ column that indicts it. If James Bennet is on a mission to broaden the range and form of opinions on his page, Stephens is very nearly the worst possible vehicle to accomplish that. It is as if someone said they were tired of vanilla ice cream and decided to go wild by ordering FRENCH vanilla ice cream.

It might be necessary to remind readers that the copyright lawsuit brought by Oxford University Press, Cambridge University Press and Sage Publishing against Georgia State University is still going on. It began in 2008, and after losing all of their major points at every level of the litigation, it would be easy and sensible to conclude that the publishers had walked away, as most sensible plaintiffs would have done. But these are not sensible plaintiffs; they, or the folks who call the shots and pay the bills for them, are fanatically determined to push their alternate view of copyright law ever up the hill, no matter how often it rolls back on them.

Thus we have another appeal to the Eleventh Circuit Court of Appeals, following the second trial court judgment, rendered after the 11th Circuit sent the case back on a remand order. Since the 11th Circuit had undermined all of the major principles the publishers were trying to establish, it is not very surprising that that second trial court ruling also went against them. What is a little surprising is that they are going back to the 11th circuit to complain, yet again.

This second appeal is at the stage where amici curiae (friends of the court) are filing briefs in support of one side or the other. In a recent blog post, David Hansen of Duke covered some of the points raised in the brief by the Authors Alliance on behalf of GSU. I would like to review some of the arguments made by the Library Copyright Alliance (LCA) in its brief, which also supports GSU.

The LCA brief begins by noting the foolish persistence of the publisher plaintiffs.  The brief suggests that the publishers actually got the best probable outcome way back in 2009, when the Georgia Regents adopted a new copyright policy.  That changed the case, and it made it much harder for the publishers to “knock out” fair use for e-reserves in through litigation.  But they kept going, making ever more unlikely arguments over excerpts that were used over three semesters eight years ago.  One possible explanation, if a reasonable explanation for these unreasonable actions can be found, is that the plaintiffs are essentially trying to re-litigate issues that the Court of Appeals already decided three years ago, something that U.S. law tries hard to prevent.

But the brief discerns a deeper, more sinister motive for the publishers’ behavior: “Having failed to strike a knockout blow, Publishers now seek death by a thousand cuts.” The LCA suggests to the Court that publishers are using their deep pockets to keep alive futile litigation in order to create a chilling effect on other universities.  This is probably correct, although it indicates just how out-of-touch these plaintiffs really are.  My impression is that this case has become something of a joke to many in the academic community, and that policies and practices for providing digital resources to students have moved well past most of the issues that publishers are fighting over with such comical determination.

One issue raised by the brief, however, is important and timely.  The LCA suggests that the trial court failed to analyze the second fair use factor as fully as it should have.  This is a problem not just with this trial court but with many, indeed most, applications of fair use.  Courts tend to look at the second factor, the nature of the work used, only in terms of information versus fiction, highly creative works versus those that are more factual.  As the brief points out, however, the second factor is the place to consider “whether the work is the kind of expression that requires copyright incentives for its creation.”  In other words, why is this particular type of work written, and what are the expectations of the authors of this kind of work?  Distinguishing between highly creative works and those that attempt to convey information is really just a surrogate for this deeper inquiry.  Courts should be asking, as the brief points out quoting an article by Robert Kasunic, “whether copyright might have reasonably encouraged or provided an incentive for an author to create the work.”

In the case of academic works, the LCA argues, it is recognition and prestige, not profit, that academic authors are seeking.  Since the rewards that copyright offers are not a significant incentive for creation, the purpose and nature of copyright itself argues that these works should be more accessible for fair use than a commercial movie or a best-selling novel.  Thus, according to the brief, a proper second-factor analysis would find that the second factor favors fair use for all of the excerpts at issue in the litigation.

The publishers, of course, do not like an analysis based on incentive, since they want to be able to substitute their own profit motive for the authors’ reasons for creating the work in the first place.  But profits for intermediaries, if they are to be relevant to a fair use analysis, must serve some role in incentivizing creation.  Since, for most academic works, any share in those profits is withheld from authors, the market that copyright is intended to create fundamentally fails in this area, so these works should be subject to a much wider field for fair use.

In its final section, the amicus brief from the LCA tries to return the Court of Appeals to the fundamental situation that is at issue.  What impact would it have on higher education and academic publishing if institutions were compelled to license each provision of even a small portion of a work to students in digital form?  Those licenses are very costly, so it is quite clear that some other priority would suffer if this extra money were paid to publishers, and the most likely source of those funds would be library collection budgets.  Thus, paying to license materials that have already been published and purchased would reduce universities’ ability to purchase or license new materials.  Publishers might create a new income stream, but it would be offset by lost revenue from sales.  Education and the production of new knowledge would be harmed, and academic publishing would begin to look a lot more like copyright trolling, rather than the dissemination of learning.

The LCA is asking the Eleventh Circuit Court of Appeal not to let this happen.  We can only hope that they listen.

The “Copyright Office for the Digital Economy Act” [HR 890]  was introduced in the United States of House of Representatives by Rep. Tom Marino [R-PA], Rep. Judy Chu [D-CA], and Rep. Barbara Comstock [R-VA] on February 6, 2017 and immediately referred to the House Committee on the Judiciary.

The bill was had been introduced [HR 4241] in the 114th Congress.

From the Current Draft of the Bill:

The powers and duties of the United States Copyright Office shall be vested in a Director of the United States Copyright Office, who shall be a citizen of the United States and shall be appointed by the President, by and with the advice and consent of the Senate. The President shall make the appointment after receiving the recommendations of the commission established under subparagraph (B).

[Clip]

Until such time as the first Director of the United States Copyright Office is appointed under section 701 of title 17, United States Code, as amended by section 2(a) of this Act, the Librarian of Congress shall continue to perform, on and after the effective date of this Act, any administrative functions the Librarian performs, on the day before such effective date, for or to the benefit of the Copyright Office (including the Copyright Royalty Judges).

Read and Track the Legislation (via GovTrack)

The focus of the group, the Liberty University president says, will be to respond to “overreaching regulation” and micromanagement by the U.S. Department of Education.

Police and social services were baffled when an elderly man with an American accent was found lost on the streets of the streets of Hereford. Who was he?

Policymaking and ‘Gold Standard Science’ Via Fake Studies and Defunded Research Universities? Sara Brady Mon, 06/02/2025 - 03:00 AM

Policymaking based on made-up studies places the health of our nation at risk.

The campus's executive director, Christopher Dyer, used university funding to organize the event and a subsequent expedition in search of the hypothetical hominid.

On October 21, Carla Hayden, the new Librarian of Congress, reassigned Maria Pallante, Register of Copyrights and head of the U.S. Copyright Office, to a non-managerial advisory role. On Monday, October 24, Pallante declined the reassignment and resigned from the Library of Congress, effective October 29. Many publishing, music, and film industry groups have expressed surprise at the move, describing it as a firing.

A post on authorsguild.org called the move “unprecedented” and stated that Authors Guild leadership was “disappointed to see Pallante go,” praising her work toward creating a small claims tribunal for copyright holders, and her “uncommon willingness to comprehend and to balance the positions of all copyright stakeholders. Especially important to the Guild was Pallante’s conviction that ultimately the creative industries cannot thrive without respect for individual creators.”

If one views the reassignment as a dismissal, it’s true that this marks the first time the Register of Copyrights has been dismissed since the position was created 119 years ago. But if Hayden wishes to retain the Copyright Office as part of LC’s organizational structure, it’s no surprise that she would not want to have it led by Pallante, who openly advocated for removing the office from LC oversight.

In a March 23, 2015 letter to Rep. John Conyers Jr., Ranking Member of the House Committee on the Judiciary, Pallante wrote that “many people, including Members of Congress, are surprised to find that the copyright system is currently accountable to the national library. There are mounting operational tensions with this arrangement and…a number of legal concerns. In considering the issues and the options, we have come to believe that the national copyright system would be better served by an independent copyright agency,” led by a Presidential appointee.

The ten-page letter to Conyers also cautions against relocating the Copyright Office to the Department of Commerce as a sibling to the U.S. Patent and Trademark Office, and offers, “at Congress’s direction…to create and submit a summary of other financial considerations” involved with establishing and running a new, independent copyright agency.

“There is a bit of outcry from rights holders right now over Pallante’s removal. It tells you how much of an anomaly the Copyright Office is in our government, that there’s this much political pushback when a new head of a department comes in and changes some of the leadership under her,” said Ryan Clough, general counsel for Public Knowledge, a Washington, DC–based nonprofit public interest group focused on intellectual property law. “In most other departments, that would be a fairly normal thing, especially in a situation where the [lower ranking] officer had a history of advocating for independence for their part of the department…. If you compare it to other federal agencies, it’s not unusual.”

Still, a YouTube video by nonprofit advocacy group The Council of Music Creators insinuated that technology corporations might have pushed for the move, and urged viewers to contact their senators and congressional leaders to demand an investigation. In an article titled “Murder in the Library of Congress” technology news site theregister.co.uk took aim directly at Google. “The legal duty of the Register is to uphold a functioning rights marketplace, something Silicon Valley isn’t keen to see, as the windfall profits of today’s giant web companies come from aggregation rather than trade,” the article argues.

And Billboard magazine’s Robert Levine speculated that “her sudden removal could suggest a more skeptical view of the value of intellectual property in Washington, DC” and that Hayden “is perceived to favor looser copyright laws, since she previously served as president of the American Library Association [ALA], an organization that lobbies for greater public access to creative works, sometimes [at] the expense of creators.”

Digital conflicts

The idea that Hayden, or ALA for that matter, “favor[s] looser copyright laws” or that Pallante’s reassignment/removal suggests “a more skeptical view of the value of intellectual property” is arguable. First sale doctrine, first codified in the 1909 Copyright Act and later clarified in the Act’s 1976 revision, has long protected the right of U.S. libraries to loan books and other physical media, such as DVDs. Digital content, however, is not afforded these same protections, primarily due to the way it is transferred. Publishers and rights holders have convinced the courts that the ease of copying and transferring digital files necessitates the passage of punitive laws such as the Digital Millennium Copyright Act (DMCA). So, generally speaking, libraries and library organizations have spent the past two decades trying not to run afoul of these new rules while still conducting key functions such as preservation, archiving, and of course, providing equitable access to information, regardless of format.

Levine may be alluding to the library field’s consistent opposition to additional punitive copyright legislation, such as the Stop Online Piracy Act (SOPA), a widely controversial 2011 bill that proposed maximum penalties of five years in prison for illegal streaming activity, and would have given law enforcement the power to shut down entire Internet domains based on copyright infringement on a single web site, among other provisions. Pallante was at odds with ALA’s public stance on this issue. She argued before the House Judiciary Committee in November 2011 that “the U.S. copyright system will ultimately fail” without laws like SOPA.

Ernesto Omar Falcon, legislative counsel for the Electronic Frontier Foundation, recalled that the political conversation that framed SOPA tended to focus on piracy in countries such as China. “That was the argument back then. [Movie studios and other rights holders] were talking about how much money they were losing in China.” In the years since, despite SOPA’s failure to pass, the movie industry has seen dramatic profit increases at the Chinese box office, he said. “I tend to think the assumption that we need more punishment, more controls, more restrictions…the vast majority of consumers want to consume [content] lawfully. But, when you make it very difficult for them, you get this [piracy] behavior.”

Clough contended that “instead of acting as a cautious, objective advisor [who] provided a way for Congress to understand different stakeholders, different perspective, and copyright law itself, the office [under Pallante’s direction] acted much more like an advocate for particular stakeholder views.”

There is evidence of this perspective in “The Next Great Copyright Act,” an extended transcript of a March 2013 lecture at Columbia Law School published in The Columbia Journal of Law & the Arts, in which Pallante discusses the need for a review and overhaul of U.S. copyright laws.

“The issues of authors are intertwined with the interests of the public,” Pallante states. “As the first beneficiaries of the copyright law, authors are not a counterweight to the public interest but are instead at the very center of the equation. In the words of the Supreme Court, ‘[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.’ Congress has a duty to keep authors in its mind’s eye, including songwriters, book authors, filmmakers, photographers, and visual artists.”

This is certainly a reasonable viewpoint, and Pallante’s related advocacy for tough copyright enforcement in digital environments appealed to rights holders and publishers.

But Falcon argued that the needs of other stakeholders should not be overlooked. “When we talk about copyright, it’s much more than just rights holders that are part of the underlying constitutional question about copyright. It’s users, it’s follow-on derivative works and the progress of the sciences and fine arts. Extending the monopoly or having monopoly controls that control every usage, or trying to change the law to make it harder for people to use [copyrighted content] in a lawful way, is antithetical to the whole purpose. The whole purpose is to incentivize people to create, and at some point those creations should be free. That’s the premise.”

Clough speculated that Hayden might prefer that the office play a more neutral role in advising Congress going forward. He later argued that LC’s oversight of the Copyright Office is appropriate, and that it should not be made into a standalone agency.

“The Copyright Office’s fundamental mission really aligns with the library. The library’s goal—and it appears Dr. Hayden’s goal—is to make intellectual and cultural works available to as many Americans as possible. And while copyright, obviously, is an exclusive right and restricts access to works in certain cases, that [library mission] isn’t inconsistent with the mission of the copyright office, which should be, first and foremost, to make information about the ownership of those works as available as possible—being able to find the owners, being able to license the works, and so on.”

The memorandum detailing Pallante’s reassignment offers a few insights into Hayden’s views on these issues. Had Pallante accepted her role as Senior Advisor to the Librarian, one of her key assignments would have been creating a process for determining the copyright status of published printed U.S. works between 1923 and 1963.

“According to analysis from the HathiTrust, as many as 50 percent of the books published in the U.S. between 1923 and 1963 may be in the public domain,” Hayden wrote. “To maximize our ability to make the national collection available online, the Library needs a well-defined, efficient procedure for determining the rights status of books first published between 1923–1968.”

Another key assignment involved creating an implementation plan for “strengthening and clarifying mandatory deposit provisions and steps the Library could take in the near term to acquire digital works through mandatory deposit.”

LC did not issue a statement regarding Pallante’s resignation, but when asked whether the library intended to continue with these plans, Director of Communications Gayle Osterberg wrote “Yes. All of those assignments are important for the Library.”

Karyn Temple Claggett, an associate register, was appointed Acting Register of Copyrights while the agency seeks Pallante’s replacement.

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A few years ago, I was asked by the U.S. State Department to give a presentation on copyright for librarians in India.  I spoke via web conferencing to a group of Indian librarians gathered in an auditorium at the U.S. Embassy, and the session was moderated by an IP professor from Delhi University.  This moderator began the session by asking me a very challenging question; pointing out that the standard textbook that he would like to use for his class in trademark law cost more than a month’s salary for the average Indian, he asked me how the copyright balance between rights holders and the public could be calibrated in such economic conditions.  I don’t think I provided a very good answer at the time, but last week the High Court in Delhi took on that question and offered an amazing response.

The case involves a lawsuit brought by three publishers — Oxford University Press, Cambridge University Press and Taylor & Francis — against a kiosk on the Delhi University campus that was providing copying services for students, often providing so-called “course packs” consisting of photocopies of all the supplementary readings for a particular course.  This service apparently sometimes included copying of entire chapters from textbooks.

If this all sounds rather familiar, it should.  Two of the plaintiffs, of course, are also plaintiffs in the long-running case against Georgia State University, over scanning, for class use, of excerpts from books (after losing another trial court decision in that case, on remand, the plaintiffs recently announced their intent to appeal to the 11th Circuit, again).  OUP and CUP are, ironically, becoming the go-to publishers for attacks on higher education; their greed and poor judgment are actually serving the global higher ed community quite well because their losses help clarify the broad scope of fair use / fair dealing.  But the Delhi University case probably seemed easier picking to those publishers, since the copying was commercial, in that the copy kiosk was paid for the course packs, and some textbooks, works intended directly for the university market, were at issue.  But the decision was not easy for them; it was a disaster for the publishers.

The legal basis for Justice Rajiv Sahai Endlaw’s holding that the challenged copying is permitted was section 52 of the Indian Copyright Act, which enumerates instances of copying that are not infringement.  There is a broad exception for copying of literary works by teachers and students, and the Justice held that this “course pack” service from a commercial copyright service was allowed under that exception.  There are three aspects of this decision that I think make it quite remarkable.

First, Justice Endlaw took the step that courts in the U.S. were unwilling to take when hearing course pack cases; he held that if the copying would be permitted for the students themselves, it was permissible for them to employ an agent to do it for them.  These seems like a logical application of the law, and it is one that is really quite common.  Rights holders, for example, often employ agents to exercise their rights, particularly in sending take down notices about alleged infringement to internet services providers.  Why then, should users not be allowed to employ agents to exercise their rights?  Since the exceptions are based on the socially-desirable use that is being supported by the law, why should it matter who actually presses the “copy” button?

The second remarkable thing about this verdict is the Justice’s explicit statement that copyright is neither a divine nor a natural right.  It is amazing, first, that a court even has to say this, since it is settled law, at least in countries with British-influenced copyright laws.  But publisher rhetoric often sounds like they believe that they are entitled to be paid for every single use, and that every exception to their monopoly is an unjustified taking of their property (rights holders in the U.S. are making exactly this claim about compulsory licenses).  So the Justice reminds us that copyright does not emanate from on high, but is rather a practical policy designed to address a specific economic situation.  When the grant of exclusive rights does not work to solve the economic dilemma for which it is intended, those rights must give way.

The economic analysis that follows on this conclusion is the third remarkable thing about this verdict; that analysis is discussed in this article from Forbes.  Basically, the Justice tells us that the students for whom the copies at issue were being made would never be customers of the publishers because those publishers had priced their books too high for the market.  The students would not, could not, buy all of the books in question; were it not for the copy shop kiosk, they would need to laboriously take notes by hand, as Justice Endlaw tells us he did as a law student.  So the copy kiosk is not substituting for a legitimate market, it is just providing a labor-saving service.  What this seems to say, then, is that when the publishers get so greedy that they price themselves out of a specific and socially important market, they will not be allowed to use copyright to shut down market alternatives.  As prices for academic books rise throughout the world, this situation is becoming quite real even in more developed countries, so Justice Endlaw has provided us with a path forward that might well be important even in the U.S. and Europe.  Basically, we need to return to the economic roots of copyright and analyze alleged infringements through the lens of its original incentive purpose for authors, not the rent-seeking of publishers.  In fact, the fair use analysis in the U.S., especially in its second factor about the nature of the work, invites us to do just this.

With this ruling, Justice Endlaw indicates a possible solution for the damage that the copyright monopoly is doing to education and innovation around the world by looking at the economic incentives, and using exceptions to the exclusive rights to keep copyright within the bounds of the balance demanded by those incentives.  Personally, I am grateful to the Justice for pointing out how to answer that difficult question from Indian librarians that stumped me years ago.

A conversation with the geobiologist A. Hope Jahren, author of the memoir Lab Girl, on women, research, and life in the lab.