Faculty, Scholarly Communication and the Library

For as long as I have been in this profession (since 1979 for those keeping score), scholarly communication has been the blessing and the curse of libraries.  The blessing because, let’s face it, without scholarly communication there isn’t much reason to have a library.  A curse because figuring out how to pay for it has bedeviled every librarian since Callimachus.  Thousands of years later, we’re still trying to figure out the cost part of the equation.

But it isn’t just costs, either.  Preservation of materials, collections, housing, and access all figure into the imbroglio of providing scholarly communication in the context of a library setting.  A new study, however, sheds bright light on the matter.  Ithaka S+R is a not-for-profit group that tracks libraries and their changing digital landscape. Its most recent study shows that faculty attitudes about libraries and their work are more important than ever.  Students must not only graduate on time, but they must also be able to take their place in the world.  Any college graduate who cannot access scholarly communication easily and well is going to find herself behind from the start.

More than half the faculty respondents said that students’ ability to access scholarly communication is weaker than ever before.  In our ever wired and more digital world, this may come as a something of a surprise.  It isn’t to those of us working in libraries.  We see students struggle routinely with so-called simple research investigations, even seasoned students on the verge of graduation.

While the degree of oversight among faculty in the study differed from discipline to discipline, faculty in the Humanities  were the most critical with six out of ten faculty saying their students struggle with finding the simplest of scholarly work.  Most students still begin .. and end with a Google search.  While Google may well be an acceptable beginning point, it cannot be the end.  While Google is vast and quick, it is no mithridate to illness of research.  Most students find daunting the millions of possible sources in a given search and quickly decide to take the first three or six–not the best of all possible research worlds.

The vast majority of faculty also see the library as a partner in this work, and are looking to librarians to enable them to help students ferret out their way in the arabesque thicket of academic information.  One areas that most faculty agreed upon was the importance of a discovery tool rather than individual databases as a starting point.  A quarter of faculty respondents thought that being able to search across databases and disciplines far more important than starting in one and looking for others.  This is likely the result of Google and other search engines that search across vast oceans of information.

Fortunately for Winthrop students, Dacus has been in the business of teaching information literacy skills for decades.  Not only that, but with additional programs like Book-a-Librarian, Winthrop students can learn general searching skills in Writing 101, and then move to more advanced searching skills by making an appointment with any of nine librarians helping out with the program.

On every university campus there are really two kinds of scholars.  There are those in the classroom that you see each day who know the topic, who teach you what years of experience and training have taught them.  Then there are the other kinds of scholars, those who know how to find information on that topic–or any other–and these folks are in the library.  The study may be new, but its result merely confirm what we librarians have known for a very long time.  We make not teach in classes routinely but we do teach students how to find their way through the dark forest of scholarly communication.

We hope you’ll come by early and often to see us and let us help you find your way around the so-called information superhighway.  Google may well be the entrance ramp to it, but if that’s all you know, you’ll never make to the actual highway, much less your hoped-for destination!

Literacy, Millennials, and Workplace Readiness

Comparison are odious, or, as Shakespeare has Dogberry put it in Much Ado about Nothing, “Comparisons are odorous.”  That being said, we cannot always ignore comparisons entirely.  If for no other reason, comparisons give us a chance to measure ourselves against some chosen or random benchmark that may shed some light on where we are in relation to that benchmark.  Yes, it is true that all such comparisons have their limitations.  What a particular comparison may say about a group may well say nothing about a given individual.  Moreover, one never knows the mindset of those taking part: are they engaged, are they really trying, or are they pulling the researcher’s leg?

Still, comparisons, ‘odorous’ or otherwise, are not without some value.

One such comparison getting a lot of press these days is the Program for the International Assessment of Adult Competencies, or PIAAC.  PIAAC  began in 2012  with round one of 21 countries and 5,000 participants between the ages of 16 and 65.  The study focused on technology skills, literacy, numeracy, and the ability to solve problems in a “technology-rich environment” at home, in the community or at work.  Respondents are voluntary and some incentives are given to respondents.  PIAAC is the first global study of important workplace skills. U.S. millennials in the study would have been between the ages of 16 and 34 at the time of the survey.

Again, one must look at the context and not make too many broad generalizations.  (For those interested, here’s the FAQ on reliability.)  But in looking at U.S. millennials, the results of this study indicate that more work is needed.  Of the 21 countries that participated in round one, U.S. millennials finished behind 15 other countries.  Too many times, the U.S. was in a dead-heat for last with Spain and Italy. Whatever else one can say about the OECD study, we can say this: it’s not very good news.

It’s not good news because it means that millennials in that study weren’t very well prepared for the workplace.  It means that in solving problems in the context of our now well-wired world, millennials are not matching in ability their counterparts in most of the other countries in the study.  They are lacking behind or far behind, depending on what part of the survey we examine.

Furthermore, it means that we educators have to do a better job of providing those in our educational care the kind of background they need to be successful.  By successful, I do not mean that you go on to become a college professor the way most of in colleges and universities have.  By successful, I mean that they are able to take their place in this wired world and  do well in whatever endeavor they choose to pursue.

But it also means something for today’s students.  Your takeaway from this survey is not a very complicated one: your education requires as much from you as it does from those of us granted honorary permission to assist you.  You have as much responsibility to let us know what you’re not getting as we do in telling you what it appears you may be missing.  If you say nothing, it’s like going to your physician about an ongoing pain but not mentioning it and then blaming her when it blossoms into a full-blown illness or worse.

It is after all your education.  That is a possessive pronoun, meaning that you must possess it, just like you do your iPhone, your car, your playlist or your video games.

Your education isn’t a one-way street.  If you make it that by waiting for everyone else to do it for you, it can turn out to be an expensive dead end.


Getting Fit while Studying for Those Finals

By now most of you will have heard about, or seen, the two latest ‘editions’ to the Dacus collections.  I mean, of course, the two new FitDesks.  Now, what in the world is the library doing with gym equipment?

It’s a good question, and we ask ourselves not exactly that everyday, but questions like that, such as what is a library really about?  We don’t presume to know the definitive answer to that (because it’s always evolving) but we do know that it isn’t precisely what it’s always been, not exactly what it’s been for the last fifty years. But I digress.

Many now refer to sitting as the new smoking.  Whether you go along with this or not, we all know, and all have known for some time, that being sedentary is not in the best interests of your salubrious self, at least not over the long haul.  Since movement is important, no matter how insignificant, getting up helps keep the blood flowing, bike-oneespecially if you’ve been sitting for too long.  When the blood flows, ideas percolate, brain matter fires in the crucible of thought, and suddenly, things begin to make sense, sort of.

We moderns beat ourselves up too much about everything: how we look, how we act, how we think, how we vote and so on.  It’s good to be self-reflective, but occasionally we are a bit too self-reflective, too omphaloskeptic for our own good.  We worry too much about … everything.  Sitting may kill, but we know stress really does.

Having said all that, perhaps the best tonic is to stand up and get moving!  So, with that in mind, and with you heart in our hearts, we hope to make all of them better, stronger, and more invigorated. Hop on the new FitDesks with your favorite book or laptop and tell us what you think.  Do you want more of them?  Are two plenty?

We’ve placed them temporarily at the front of the building so we can monitor their use but they won’t stay there forever. If response is strong, we’ll add one or two more later this summer.

And no, our purchase of these FitDesks did not compromise, hurt or otherwise offend any books, serials, or other materials.




Are Open Access Textbooks the Answer?

Students complain to us most about the cost of textbooks. Who can blame them, really? When I was in school, I could count on spending perhaps as much as $100 additional dollars on textbooks. By the time I enrolled in my first graduate degree, the cost had soared to about $250, and by the time I began my second one, textbooks cost me more than the cost of one additional class.

Today’s students are lucky to get out of the bookstore without spending more than $1,000. The College Board, which tracks such things, argues that it may be as high as $1,200 annually. When you figure in tuition and other costs, one begins to see why many students—or should I say the parents of students—are questioning the cost of college. After four years and a sizable debt facing them as they enter what will almost surely be an entry level position, some students and parents are now viewing college as a luxury, not a requirement.  That spells sure danger for our electorate.

It’s true that until recently, college and universities were not doing very much to hold these costs down. Amenities caused costs to soar, and specialization caused courses to multiply.  A four-year degree that once cost about $5,000, now exceeds the cost of two new cars.

Yet one place that colleges and universities can carve out immediate savings for students is in the very place that students complain about most: those expensive textbooks. It’s taken more than a decade to iron out cheaper alternatives–textbooks are after all, a cash-cow for most textbook publishers—cheaper textbooks are now already here via open educational resources, or OER.

One such example is OpenStax College. OpenStax College (OSC) is an online repository of dozens of peer-reviewed textbook in Physics, Biology, Anatomy, Algebra, Calculus, Economics, Chemistry, Social Sciences, History and Psychology. Begun as an open access initiative of Rice University, it became OSC with the help of numerous foundations, including the Bill and Melinda Gates Foundation, the William and Flora Hewlett Foundation, and the Bill and Stephanie Sick Fund. College and universities that adopt OCS textbooks help students save millions.

OCS relies upon open education resources, or books that are published in the Creative Commons, bypassing current U.S. copyright laws. Once expensive textbooks can now be accessed electronically through entities like OCS.  It’s a win-win for everyone.

Open educational resources are also an initiative that many libraries are pushing (and Dacus is very much involved in) in an effort to secure scholarly materials at little or no cost.Scholarly communication is also currently one of the largest costs that libraries have to bear. Because most scholarly communication is esoteric in nature, its appeal is limited to narrowly focused audiences, such as other scholars or students studying those areas. Libraries become the revenue generator for these materials with access to commercially produced scholarly communication in the form of electronic databases costing five figures or more. Open access reduces that burden substantially and guarantees its creators copyright ownership in perpetuity.

OCS isn’t the only textbook player in this game, of course. There are several. Not all open access is equal, however, and this is one reason why faculties at many colleges and universities have been slow to adopt open access textbooks. But many of those problems have been addressed or are being addressed, and each faculty member teaching a course should make every effort to find an open access text.

It may well be a pipe-dream since the current model of charging hundreds of dollars for textbooks has been in place for decades. Changing all that is going to take time.

But if not now, when; if not us, then who?


bepress-digital-commons-libraryblogs_fullerton_edu_One week ago from the time I am writing this (5 June), my university hosted the first ever digital commons southeastern users group.  The cryptic header to this column is thus immediately revealed.  While other such groups have appeared across the US, some of them in place for a half a dozen years, a handful of us with institutional repositories decided last fall that now might be the time for a southeastern omnium gatherium.  Winthrop, by virtue of being centrally located, hosted the event.

While a small group (35-40), we made up for that in enthusiasm and innovation.  I have written before about IRs/digital commons phenomena and the whole open access calculus.  This was the time actually to do something, and it turned out to be nothing short of spectacular.  I can say that because I had very little to do with the conference, other than to welcome our guests.  We had two from bepress [sic] in California, and users from Florida, Alabama Georgia, North Carolina, Mississippi, and, of course, from South Carolina.  We planned for the group to be about 20, so small, exceeded our expectations for a first venture.

If you want to get a sense of what we did, take a look here.  Several things struck me about this process but one thing stands out as you look over our day-long conference — a lot of folks are doing some very wonderful things.  Whether you have a digital commons or not, now is the time to get on the bandwagon.  It’s a great way to create your university’s digital footprint by capturing its intellectual capital.  But it is also more than that.  It’s a way to showcase your library, your faculty, your institution, and your students.  In short, it’s a win-win almost no matter how you look at it.

We began building our IR in October.  Several events occurred at once and allowed us to redefine positions last summer.  Out this came the creation of a digital commons librarian role.  We have hit the ground running and only recently saw our 2,000th download.  We are basically a one-person operation, a point that troubled me in the beginning.  But what I learned at the conference is that this is hardly unusual.  Most IRs have one person with several others who contribute when they can.  The same is true for us.  We have individuals in our Pettus Archives who help out with posting.  Later this summer we’ll add some catalogers to the metadata end of our work to make what we have now, and what we’ll have in the future, even more accessible.

As I said above, I participated mostly as a spectator, but several things have emerged since we took on this new role.  I am certain these are obvious kinds of things, but I share them because what is known is not always obvious, and what is obvious, isn’t always known.

Librarians need to take more risks.  We live in tumultuous times in librarianship.  There are days when it looks to me like librarianship won’t make it to the next month, much less the next decade.  Then there are days when conferences like this one occur and renew my faith that our profession may be somewhat weakened but we are hardly terminal.  With some creative risk-taking, we can recapture and redefine what we mean by the word library.  I don’t mean taking risks just to take them, but to look at the landscape and see what might work.  Librarianship needs more of that, not less.

Librarians should not be afraid of failure.  Having said that, know that some things will not work and that’s okay.   I’m not going to bore you (more) by trotting out the tired adage that you learn more from failure than success.  While that is true, it doesn’t help a whole lot when you’re in one of those fallow fields of failure.  But we do need to realize that we are going to have to try a lot of different things in order to continue to flourish.  Many of those things will not work.  That’s okay.  Try them, and if they fail, move on and try something else.

You don’t have to know code to be inventive.  Many of the IRs I looked at are astonishing in their appearance and their complexity, but one doesn’t have to know coding to do this.  Of course, knowing how to code is and always will be a plus, but you don’t have to know how to do that in order to begin.  I am under no obligation to BePress to say this, but we chose them because our coding abilities are elementary and our access to sophisticated coding severely limited.  The folks at BePress won’t do it for you, but they come pretty close!

Creativity abounds in digital commons.  I thought I knew a good bit about what was going on in digital commons around the country.  I’m no expert, but I do try very hard to keep up.  This conference showed me that I’ve only scratched the surface. This is great news for libraries and for librarianship.  While not every digital commons is associated with a library, many are, and a good many who run them are librarians by training.  With minimal support, libraries can create an entirely new information access point that not only rivals what is already there, but may even surpass much that is in place, or has outlived its usefulness. For a flavor of what’s possible, take a peek here.

There are no sacred cows.  For a good portion of my career, librarianship has had certain rules and expectations that could not be transgressed or ignored.  All of those sacred cows have been sacrificed on the altar of survival.  I’m not saying that we throw caution to the wind.  But what you do or want to do to attract users to your building is limited by what you’re willing to allow.  No one is stopping you.  There are no wrong answers, and though some might well arch an eyebrow or two at new initiatives, let them arch away.  At least one of our jobs as librarians is to preserve what has worked well and find new and imaginative ways to attract new and younger patrons.  Sacred cows have a way of, well, getting in the way of needed change.

The future is now, but be patient with the past.  The folks who know me know I am a traditionalist at heart.  But the longer I work in this profession, the more I see that you can preserve traditions by building the future on that very solid foundation.  Our IR is growing by fits and starts but only because we’re still trying to get everyone on board.  And while this is frustrating at times, I remind myself that it wasn’t so long ago that I was right there with them.  Plodding really does win races.

The Internet is still no substitute for a library and I still believe it never will be.  But the Internet is a vehicle, a tool, with which you can augment, enlarge, and even aggrandize your library.  There’s nothing wrong with that.  So, jump into that digital commons if you haven’t already and use the Internet to hammer home all the wonderful things your library is doing and has always done.

(A version of this article appears in Against the Grain)

The Moving Finger…Blinks, and Having Blinked, Blinks On

At the end of February, amid the snow and the false alarms for snow and ice in the Palmetto State came the following headline: “Why Digital Natives Prefer Reading in Print—And Yes You Read that Right!”. No, it didn’t come from the pen of this author (though it could have) nor did it come from any number of those whom some wish to brand as Luddites: Nicholas Carr, Mark Bauerlein, or Sven Birkerts. Rather it came from Maryland reporter Michael S. Rosenwald and The Washington Post. The piece is eye-catching if for no other reason than it isn’t from the usual suspects!

What Rosenwald discovered is precisely what Carr or Birkets or Bauerlien or your faithful columnist has been saying for at least a decade: yes, online reading occurs, and many digital natives use if for a variety of reasons. But no one, including them, prefers online reading when trying to comprehend a difficult text.

It is as if Rosenwald is reading over Carr or Bauerlien’s shoulder. The students he interviews do not like online reading because it is distracting. They find online reading difficult because when they read an online text, 90% of the time they are also doing something else: checking email, checking in at a social network, or even playing a game. Rosenwald opens with a young man, 20, who simply prefers reading text because of the smell, the feel and even the silence of the text: it isn’t making sounds, ringing bells, or offering a rabbit hole in which to get lost, literally or figuratively. Further, online readers tend to skim, cannot fully comprehend what they are reading, and find that their minds really wander all over the place. Some even complain that the light in their eyes rather than over their shoulders is problematic.

Some of those interviewed said they would not even attempt a difficult text in electronic form. And who can blame them? Most anyone can scan a newspaper or even take on a Harry Potter book. But Tocqueville? Plato? Joyce? It simply cannot be done. Joyce underscores the print versus online problem in high relief. Perhaps no other author lends himself well to the online format of hyperlink hype than Joyce because he requires so much elaboration. “Met him pike hoses” isn’t going to resonate with many that Joyce is word-playing with metempsychosis. But readers find that even such quellenforschung is also better done in print than a myriad of distracting hyperlinks.

Of course, it isn’t that digital natives or anyone else refuse to read online. Many love the ability to define words (though they likely forget them immediately), or to do quick keyword searches. Some, though I admit to reading between the lines, also prefer being able to do searches in books they haven’t read for materials they may need for a paper. Science materials, too, tend to be online favorites.

So, what are we to make of all this? As I have written elsewhere, it’s part of the transition. In no way do I believe that this spells the end of online materials. Publishers, who in a print world, enjoyed Sardanapalian benefits, are trying to recapture those cash cows in bits and bytes but with little success. It isn’t so easy, but they’re discovering it is much cheaper to print an electronic book while dropping the price only marginally. Like online courses at war with classroom ones, online books are going to be cheaper and provide a greater return on investment. That ROI does not necessarily include what students are investing in, however. If eBook reading increased 200%, it would still have a way to go before it caught up with print reading if measured in terms of value received and retained.

What this means for libraries is obvious, isn’t it? We still have to collect and support both for the time being, in the same way that we have for years supported microfilm and bound periodical volumes. Microform reading only caught on when there was no other choice. I would find it surprising if eBooks end up in the same dustbin. Microform-reading was never easier, better or more convenient. Nothing about it enticed the reader, and much dissuaded even the diligent. Its only attraction was a pedestrian one: it saved spaced while still providing access, even if a difficult one. EBooks have already shown their value in the benefits mentioned above, but also in leisure reading. None of us really likes lugging suitcases of print books with us on vacation (my long-suffering wife will argue that she knows at least one person who does). Having the ability to take hundreds of etexts appeals to those of us with eyes larger than our brains.

But when it comes to scholarship that must be recalled and remembered, few of us will choose the electronic text over its printed counterpart. I believe this to be more a facility of evolution and practice rather than something inherently hard-wired in us. Unless or until we can rewire our brains and–for better or for worse, online reading is doing that—we will have to read both formats, depending on the subject matter and/or reason for reading.

I haven’t had time to sift through the new literacy report so I cannot speak to how well or to what extent the issue of online reading contributes to the strength or weakness of literacy. If the students in the Rosenwald story are right, and if my own research in this subject matter is at all correct, it may well unravel many of the gains we have made in literacy in recent decades. Poor readers, especially, will have a much tougher time going forward if they must learn to read digitally first. If that continues, we will see future generations underperforming when compared with their past peers.

And so, the print versus online debate continues in its ironies, whether you read this article first in print or online.

[A version of this piece appears in Against the Grain.]

Unsafe Waters-Duh…Nuh, Duh…Nuh, Duh..NuhDuhNuhDuhNuh!

Just when you thought it was safe to go back into the copyright waters, they suddenly get both murkier more turbulent than ever before. I speak of the recent appeal handed down last week, 17 October, with respect to the Georgia State University reserves case, or GSU Case. That appeal is here, all 129 pages of it.


To refresh your memory, GSU provided what were essentially digital course packets for students to use via the library’s e-reserves. In 2008, three publishers, Sage, Cambridge, and Oxford, filed suit charging over 100 violations of fair use. In 2009, GSU revised, updated, and modified its copyright policy, requiring faculty to address the four copyright factors and so establish a good faith test of fair use compliance (the four are: why you’re using it; nature of the copyrighted work; amount of the work used and that part’s value to the whole; and the market impact of your use on the material). The infringement violations were reduced to 99 with some that eventually were dismissed, removed or thrown out, leaving about 75. The case dragged on for more than a year and in 2012, about a year after the closing arguments were made, Judge Orinda Evans handed down its 350-page decision, found here.

The short version of the story is that the case proved a huge win for GSU, libraries, fair use and the information-wants-to-be-free crowd. For publishers, it was an avalanche of a loss. All but five of the 75 were found in favor of GSU. The remaining five were essentially legal quibbles, not without merit, but hardly enough to furrow the brow.

The appeals court reexamined the case last week, or rather reached a decision last week, one that took more than a year. Some say this is a win for publishers. Some say it is and it isn’t. Frankly it depends on whom you ask. The Court writes early, “[T]he District Court found that Defendants were the prevailing party and awarded them costs and attorneys’ fees. Because we find that the District Court’s fair use analysis was in part erroneous, we reverse the District Court’s judgment; vacate the injunction, declaratory relief, and award of costs and fees; and remand for further proceedings consistent with this opinion.”

That does not sound like unmitigated good news for GSU. What it does appear to be (but see Nancy Sims’ take, Copyright Librarian at the University of Minnesota) is not an avalanche of a loss for GSU, but certainly a bit of help to publishers. Publishers by no means go everything they wanted, but neither did GSU. It lost out on the roughly $3.5 million for legal fees awarded in the earlier decision. Much remains to be seen in this case, of course, but for the time being, “fair use” remains strong but a little more difficult to read.


The first sticking point is the four factors constituting fair use in Copyright Act of 1976. The Court wrote, “In order to make this determination, the court must carefully evaluate the facts of the case at hand in light of four considerations … codified in the Copyright Act of 1976: (1) the purpose of the allegedly infringing use, (2) the nature of the original work, (3) the size and significance of the portion of the original work that was copied, and (4) the effect of the allegedly infringing use on the potential market for or value of the original…. Here, we are called upon to determine whether the unpaid copying of scholarly works by a university for use by students—facilitated by the development of systems for digital delivery over the Internet—should be excused under the doctrine of fair use.”

GSU’s approach to fair use was to look at them, but not to take them as a whole, examining them “mechanistically,” or as the Court put it, “[T]he District Court did err by giving each of the four fair use factors equal weight, and by treating the four factors mechanistically.” And again, “Plaintiffs also argue that the District Court erred in giving each of the four factors equal weight, essentially taking a mechanical “add up the factors” approach, finding fair use if three factors weighed in favor of fair use and one against and vice versa, and only performing further analysis in case of a “tie.” We agree that the District Court’s arithmetic approach was improper….”

Next, the Court underscored the availability of copyrighted materials and the licensing that can be paid for them. When these materials were in printed form, GSU purchased permission from Copyright Clearinghouse Center (CCC). Wrote the court, “There exists a well-established system for the licensing of excerpts of copyrighted works. Copyright Clearance Center (“CCC”) is a not-for-profit corporation with headquarters in Danvers, Massachusetts. CCC licenses excerpts from copyrighted works for a fee, acting on behalf of publishers who choose to make their works available through CCC. These licenses are called “permissions.” All three Plaintiffs offer excerpt-specific permissions to photocopy or digitally reproduce portions of their works, which may be obtained directly from Plaintiffs or through CCC. Permissions are not, however, available for licensed copying of excerpts from all of Plaintiffs’ works.”

In other words, if you want permission, you can get it; you simply have to pay for it if it is available, and in some cases it is not. In fact, dealing with CCC is no easy matter. The Court added, “How much unpaid use should be allowed is the bailiwick of the fair use doctrine. To further the purpose of copyright, we must provide for some fair use taking of copyrighted material. This may be viewed as a transaction cost, incidental to the business of authorship. But if we set this transaction cost too high by allowing too much taking, we run the risk of eliminating the economic incentive for the creation of original works that is at the core of copyright and—by driving creators out of the market—killing the proverbial goose that laid the golden egg.” Or, there must be a balance between educational value on the one hand, and incentive to create on the other. Neither, in the court’s opinion, has an absolute right.

Although not a big deal, the Court also found that what GSU did was not transformative: “Defendants’ use of excerpts of Plaintiffs’ works is not transformative. The excerpts of Plaintiffs’ works posted on GSU’s electronic reserve system are verbatim copies of portions of the original books which have merely been converted into a digital format. Although a professor may arrange these excerpts into a particular order or combination for use in a college course, this does not imbue the excerpts themselves with any more than a de minimis amount of new meaning.” In order to remain in fair use, a work cannot be copied verbatim but must be used either sparingly (see below), or recast to create a new work. Thus, Weird Al Yankovic can get away with his music and make a sizable profit because his songs transform the original work. Parody has always been protected, so long as it is different enough from the original. The works in question had not been changed at all, just copied verbatim.

With respect to how much copying had been done, GSU often resorted to 10% of the original rule-of-thumb, or the so-called “bright line.” But the Appeals Court questioned this as well, arguing that it is not a set amount, but whether what has been copied is substantially the point of the work. Although it is in public domain, it could be argued that Portia’s “Mercy Speech,” which does not occur until the Fourth Act of The Merchant of Venice, is the heart of that play, though it comprises less than one half of one percent of the whole. A more recent example would be Joyce’s ending of Ulysses and Molly Bloom’s famous “yes” monologue. The point the court made was that simply looking at a piece arithmetically is not going to protect you under fair use if what you choose to use is the heart of that work. It’s a judgment call, but it’s a judgment call that must be made on each individual piece presented, not an arithmetical amount applied to everything possible.

The Court concluded, “[T]he District Court erred by separating two considerations from its analysis of the first and fourth fair use factors…. Because the District Court’s grant of injunctive relief to Plaintiffs was predicated on its finding of infringement, which was in turn based on the District Court’s legally flawed methodology in balancing the four fair use factors and erroneous application of factors two and three, we find that the District Court abused its discretion in granting the injunction and the related declaratory relief. Similarly, because the District Court’s designation of Defendants as the prevailing party and consequent award of fees and costs were predicated on its erroneous fair use analysis, we find that the District Court erred in designating Defendants as the prevailing party and awarding fees and costs to Defendant.”


District Judge Vinson also weighed in concurring, but was even harsher on GSU, writing “after applying traditional common law principles to the use at issue here, this is a rather simple case. Checking the four statutory factors to ensure that they have been considered merely affirms the conclusion that what GSU is doing is not fair use.” He goes on to write, “[T]his case arises out of a university-wide practice to substitute “paper course packs” (the functional equivalent of textbooks) that contained licensed copyrighted works with “digital course packs” that contained unlicensed copyrighted works. This was done for the vast majority of courses offered at GSU and, as will be seen, it was done primarily to save money.” Ouch.

He closes with a strident conclusion and a bit of moralizing: “I would go further than does the majority and conclude that both the District Court’s methodology and its analysis were flawed. The Defendants’ use fails under any objective common law “big picture” adjudication of fair use and also fails on a work-by-work analysis under three of the four factors (while the remaining factor is either neutral or weighs against Defendants). It has been said that fair use is best and most precisely explained by the following paraphrase of the Golden Rule: “‘Take not from others to such an extent and in such a manner that you would be resentful if they so took from you.’” Ouch, again.


I am no lawyer, and while I played one on stage once upon a time, that still doesn’t really count. My take on this is less sanguine than some of my doubtless better informed colleagues, here, but not here, or even here. Some factors remain that are important to consider and feed my pessimism. While the publishers may not have won a grand slam, they did get back their money, and GSU will have to modify once again its approach to copyright and e-reserves. True, e-reserves remain fair use, but they remain in the bailiwick of the library that is making a good faith effort to abide by fair use. Judge Vinson’s concurring remarks should provide a horrifying backdrop of what could have been: GSU should pay for everything it copies, or words to that effect.

First, fair use is not a blanket protection for anyone who teaches. It is a tool by which professors and teachers may use certain portions of copyright text to aid the transmission of knowledge. Currently, it cannot be a substitute for buying the textbook, asking for permission, or paying a licensing fee id what is needed is a substantial portion of the whole of that work. Blackboard CANNOT become the Wild West (as a colleague puts it) of copyright infringement. Furthermore, just because a professor wants to use a copyrighted work again and again does not make it right. In fact, repetitive use of the same materials semester after semester can become a red flag.

But there is good news: the Copyright Classroom Guidelines (spontaneity, brevity, and cumulative effect) were pretty much dismissed by the Appeals Court as being the porch of copyright, not the house. The guidelines have always been that–guidelines, not law. On the other hand, neither publishers nor authors have exclusive copyright, or absolute copyright. There are exceptions. Consumers of copyrighted materials need to understand that the work or works they wish to use cost publishers more than a little to produce. Taking from them that right, or short-circuiting it, is unfair. While information may want to be free, only Google and social media are making any money off of free content. Certainly the authors are not, and neither are the publishers if they have been involved.

Second, DMCA (digital Millennium Copyright Act) take-down notices are almost as common in academe now as patches on tweed coats once were. And they can be expensive if one is found in violation. Just as you might surf the net for something useful to use in class, so do some publishers surf the net looking for copyright violators–and the have bots helping them find you. While it is very likely a given professor will not be taken to court, his or her university might be. It’s the “deep pockets” theory. If a professor knowingly violates copyright, he or she puts everyone at risk.

Third, copyright is hard to understand, it is muddy water, it is Janus-faced (one decision looks toward publishers, another toward consumers), and trying to figure it all out is very hard to do, even for copyright attorneys. That’s where we in the library can help. If the text you need follows the four factors, we’ll help you with it. If it does not, we’ll seek permission from the copyright holder. If we cannot get that and the text is a “must have” we’ll buy the permission from CCC. If that doesn’t work and we have no link to it in our purchased materials, it may be time to look for something else. Rare is the case where one text on a given topic is all there is.

Fourth, and this really doesn’t apply here, I’m sure, revise and update your syllabus, if not every semester, then certainly every year. I know this is hard to do–I have taught before. But it is good for many reasons, not the least of which is to account for any new information that has been discovered since the last time the course was taught.

Fifth, and last, I know there are universities that seek to challenge copyright by pushing the envelope. We are not one of them. I also know that many want copyright changes, and many are eager to chant the mantra, information wants to be free. All of that is well and good. But do bear in mind that Congress must take up the copyright cudgel because that’s its job. Congress is also the reason we are where we are today with respect to copyright, so be careful what you wish for. Finally, there is a school of thought that says if we all act like copyright is over, no one will get prosecuted. We’re not there yet. Copyright law still applies, and if we are preaching academic integrity to our students, we must also practice it ourselves.

Until all this gets sorted out, open access anyone?