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Pegasus Librarian - Iris Jastram
Learning in Libraries and Loving It
Updated: 8 min 17 sec ago
News you can use: Obama signs bill modernizing terms referring to minorities in two sections of the U.S. Code
You know you’re a librarian geek when you read the headlines telling you that Obama has signed a bill that will strike “oriental” and “negro” from two sections of the U.S. Code and think “What a good reminder that full text searching through government documents is tricky.” And yes, that was me when I read those headlines on Friday.
And here’s the language from the bill itself.
(a) Office Of Minority Economic Impact.—Section 211(f)(1) of the Department of Energy Organization Act (42 U.S.C. 7141(f)(1)) is amended by striking “a Negro, Puerto Rican, American Indian, Eskimo, Oriental, or Aleut or is a Spanish speaking individual of Spanish descent” and inserting “Asian American, Native Hawaiian, a Pacific Islander, African American, Hispanic, Puerto Rican, Native American, or an Alaska Native”.
(b) Minority Business Enterprises.—Section 106(f)(2) of the Local Public Works Capital Development and Investment Act of 1976 (42 U.S.C. 6705(f)(2)) is amended by striking “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts” and inserting “Asian American, Native Hawaiian, Pacific Islanders, African American, Hispanic, Native American, or Alaska Natives”.
First, I’m somewhat horrified to find the periods on the “wrong” side of final quotation marks — I guess Congress doesn’t go by standard U.S. style guides.
But more importantly, this means that if you’re full-text searching the U.S. Code, and you know to be careful to use outdated language when searching through historic documents, you should now OR in modern language if you’re searching through the Local Public Works Capital Development and Investment Act of 1976 and the Department of Energy Organization Act.
Here ends your communique from a librarian geek interested in search language.
The academic library world has been watching the Georgia State (GSU) eReserves copyright lawsuit with interest for half of my career, and now there’s a new ruling in the case. On the one hand, I recommend reading the ruling because there’s interesting language in Judge Evans’ Fair Use assessments for each item at issue, and every time I watch someone who knows a lot about copyright go through the four factor test I learn a little bit more about how I might apply it in my own work. On the other hand, it’s 220 pages long, so there’s that.
Oh, and another thing, I’m not a lawyer and don’t even play one on TV. I’m just a librarian who takes an interest in copyright but has no legal advice to give.History of this case
In case you’ve forgotten how we got to this ruling, Cambridge University Press and a few other publishers sued GSU over book chapters that had been scanned and loaded into GSU’s eReserves system, 99 items in all, of which Judge Evans ruled on 74. The first ruling in that case was back in 2012 by Judge Orinda Evans (and I wrote a Practical Guide here). The publishers weren’t particularly thrilled with the outcome, so they appealed the case, and the appellate court handed down a ruling in 2014 that sent the case back to Judge Evans with instructions about how to amend her item-by-item Fair Use analyses (and I wrote a Practical Guide here). This Judge Evans has now done for the 48 items that the publishers thought were still at issue, resulting in the 2016 ruling that came out on March 31st. If you’re interested, here are all the details and filings involved in Cambridge University Press et al. v. Patton (this case’s official name).
One of the main things that the appellate court asked Judge Evans to do was a much more thorough analysis of the “Market Effect” (Factor Four), delving into year-by-year sales and permissions licensing fees to see what the effect of unpaid nontransformative copying really might have been on those two markets. This plus the appellate court’s insistence that there should be no “mechanistic” Fair Use analysis means that the new ruling isn’t very generalizable to on-the-ground decision-making in our libraries and classrooms. Still every new ruling helps to clarify the boundaries of Fair Use, so this one is still worth paying attention to.
In this case, of the 48 items under consideration, 4 were ruled to be copyright infringement, and all of these 4 had previously been ruled infringement in the 2012 version of the ruling. Interestingly, of the 48 items, only 2 decisions changed as a result of the appeals process:
- One item had previously been rejected because the publishers hadn’t sufficiently proved that they owned the copyrights in the first place. This one was now ruled to be Fair Use, so the publishers must have provided that proof at some point.
- One item had previously been ruled infringement, and this time it was ruled to be Fair Use.
- This ruling makes it clear that there is no transformative nature to eReserves. Judge Evans says, “the excerpts are nontransformative because they are mirror-image copies of a part of the book” (page 5). I’ve heard some people wonder if readings like this might be transformative for various reasons including presenting only excerpts in juxtaposing items in ways the original publishers didn’t intend. This ruling makes it clear that rearranging how students experience the readings is not a transformative use.
- Because the copying was nontransformative, Factor Four (the “Market Effect” factor) was given the majority of the weight in the Fair Use analyses for each item.
- GSU’s status as a non-profit educational institution, and all of this copying done in the service of teaching, Factor One (the “Nature of the Use” factor) always favors Fair Use. One useful thing to note is that the professors in the courses were questioned about exactly how each of the readings figured into their courses, and this information informed both Factor One and also Factor Three, the “Amount and Substantiality” factor. If the amount copied was “narrowly tailored” to the professor’s pedagogical goals (see page 22 for example), that helped tip things toward Fair Use.
- For each item, two markets were considered: the market for sales of the full book, and the market of permissions fees for the book chapter(s) when available. The publishers worked very hard to make it look like if there are licenses available for the chapters, then faculty and librarians should pay those fees almost without thinking. Nancy Sims (J.D., M.L.I.S.) and Kevin Smith (J.D.) strongly advise the opposite. Smith’s contention is that there will only be a market for those licenses if we pay for the licenses all the time. If we don’t pay for the licenses unless we really have to, then there’s no market to effect. I think what he has to say on the matter warrants a nice long quote:
“We should resort to paying for licenses only very rarely, and when there is no other alternative. The simple fact is that the nature of the analysis that the Court of Appeals pushed Judge Evans into is such that licensing income for the publishers narrows the scope for fair use by libraries. To my mind, this means that whenever we are faced with an e-reserves request that may not fall easily into fair use, we should look at ways to improve the fair use situation before we decide to license the excerpt. Can we link to an already licensed version? Can we shorten the excerpt? Buying a separate license should be a last resort. Doing extensive business with the Copyright Clearance Center, including purchase of their blanket campus license, is not, in my opinion, a way to buy reassurance and security; instead, it increases the risk that our space for fair use will shrink over time.” (emphasis mine)
- At the appellate court’s demand, Judge Evans was directed to pay careful attention to Factor 2 (the “Nature of the Work”) factor. This is the factor where if the item is creative, that makes copying less fair, and if it’s not creative, that makes copying more fair. (At the extreme, lists of phone numbers in the phone book are not creative enough to be copyrighted.) Some people have painted this with a very broad brush and said that fiction is creative and non-fiction is not creative. That’s obviously not nuanced enough. It was really interesting to watch Judge Evans evaluate each excerpt looking at writing style and whether the author provided opinion or evaluation. One item’s analysis on this factor ended with, “Author opinion, subjective description and evaluative expression dominate. Factor two disfavors fair use” (pages 36-37). Only 2 of the 48 items in this case came through with a “favors fair use” on Factor Two. The other 46 were either neutral or disfavored fair use.
- Given all of this, but #3 and #5 in particular, it was reinforced for me how important it is that the faculty member do the fair use analysis before putting things on eReserve. There’s no way that library staff would be able to carefully weigh the four factors without reading the works and knowing exactly how they will fit into the syllabus.
- And finally, I really appreciated Kevin Smith’s point that since very little of the Market Effect analysis is possible without court orders, making Fair Use decisions in “Good Faith” becomes all the more important. That way employees of non-profit educational institutions or libraries are not subject to statutory damages. (And I would add to his point that keeping records of these good faith decisions is very important.)
- Kevin Smith, J.D. “Here we go again: latest GSU ruling an odd victory for libraries“
- Brandon Butler, “My GSU Hot Take“
Our campus is in the midst of moving from one email/calendar solution to another, and from local network storage to cloud storage. (Specifically, we’re moving from Zimbra to Gmail and Google Calendar, and from local network storage to Dropbox — we already use Google Drive but it doesn’t fill all the needs in the file storage area.) So all of a sudden there’s this moment where the campus gets to/has to think about individual and departmental practices and figure out if these processes can or must change during the transition. (Personally, I totally geek out on these kinds of conversations, but you’re not surprised to hear that, I’m sure.) Tucked into these conversations, there’s a topic in which two very entrenched camps face off: Do you rely on search to find your email or files? Or do you rely on a folder structure? In library terms this comes back to the age old balancing of search vs browse.
Here’s the thing (and take it from a librarian, because we’ve built a whole profession on this over many many many years) most people cannot rely only on Search or only on Browse. Most people need to have mechanisms that allow for both.
Here’s why. Search relies on there being the right letters-in-a-row in your query, which the computer then matches to the letters-in-a-row contained in the items it indexes or in the metadata associated with those items. If there’s a misspelling, if there’s more than one word for the thing you’re searching on and the other person used the other word, or if there’s no built in metadata for the type of thing you’re trying to gather, search will fail you. Search will be useful in many ways and may even be your primary entry point into your saved emails or files, but it is not sufficient.
This means that there also have to be mechanisms that allow for smart browsing. In email and file storage, these mechanisms are folders or tags or labels or whatever. In library catalogs these are subject headings and call numbers. These are the things that get applied in a consistent way to say “all of these messages are related in a meaningful way, regardless of the keywords and metadata.” It would take too much time to make everything browsable in all possible ways, so Search is also important if you have anything more than a very few emails or files. So Browse won’t work all the time, but it is important.
For me, it’s important that I have a way to browse just the emails between me and my students because I really can’t remember all the names of everyone who meets with me, or what words we used in our emails, so if I want to be able to go back to a conversation the only thing in my head that I can use as a hook to go back into my email and pull relevant messages out is “student.” So I created a folder for that. I have similar folders for major projects where I know I’ll need to skim back over information that I can’t gather together through a search. The same principle governs my folder structure on my computer.
For me, I rely heavily on search, especially for email. Probably 85% of my email goes into the main archived email bin without being tagged or put into a folder. But I’ve searched for enough things in my life that I know for sure and certain that it won’t solve all my retrieval needs. Browsing is also critical.
And just for a few more thoughts on organizing your stuff, here’s an archivist talking in simple and useful ways about using her professional training to help her with her computer files. Enjoy!
Carleton doesn’t have semesters or even quarters, we have terms. Each term is 10 weeks long, and there’s Fall, Winter, and Spring term. The week numbers of each term matter so much that at the end of every spring term I look ahead to the next year and enter “Week 1, week 2, week 3…” as events on the Monday of each week for the next year’s terms. Week numbers matter more than months or dates or days of the week. Classes start on the Monday of Week 1 and end on the Wednesday of Week 9. Then there are two Reading Days, and then finals run on Saturday, Sunday, and Monday.
Right now we’re at the beginning of 7th week of Spring Term, and it feels like we’ll never survive through to graduation next month. On top of that, it’s been a crazy intense year+ that’s left me burned out and used up. Apparently powering through Chronic Fatigue Syndrome while juggling a ton of extra work, a few massive transitions, plus all the normal intensity of this job only works for so long. The fallout is starting to show up in medical bills and mental anguish.
So how do I turn it around? I like my coworkers and don’t want to let them down. And I’m pretty sure that when I step out of my own head I actually still believe that the work matters. And then there’s the mortgage, which probably won’t pay itself. I want to get back to liking my job. I want to get back to liking me in my job.