July 28, 2014
Misrepresenting Fair Use

It happened again: another online writer’s stuff got swiped and reused in another venue, without so much as a hey-do-you-mind. When the writer—rather understandably—complained, the re-user got his ire up, claiming fair use, and also that the writer was overreacting and ought to be flattered that someone liked his work enough to rebroadcast it to a wider audience.

Both are pretty common arguments, and they’re equally annoying because they rest on faulty assumptions: that a use of someone’s work is fair if you say it is, and that anyone making their work freely available will be pleased if it gets picked up and re-shared elsewhere. The particulars are as follows: a blogger wrote a post about the possibility of going back to war in the Middle East. The post went viral, getting reshared all over Facebook, and eventually got reposted on a couple of other sites. It also got picked up by a podcaster who read the entire post, verbatim, with a minimal introduction to the effect that he thought the post was really cool.

The blogger was rather displeased, especially since some of these re-posts were without attribution or so much as a link back to his original work. And he let it be known, particularly to the podcaster who had read his essay. The podcaster fired back that his use of the essay was fair, since he wasn’t profiting off of it.

There is an ongoing conversation over how material gets used and re-used online, where entire books and movies are copied and rebroadcast with minimal fuss, even when protected by DRM—if you know how to crack it. But the claim of fair use specifically is one that is often misunderstood and often misused—sometimes unwittingly, sometimes as an excuse. Since the only way to definitively test whether a use is fair is in court and most people don’t want to go to that kind of trouble, uses that are not fair are often let slide with little action beyond vociferous protest; conversely, uses that are fair are often nonetheless withdrawn under threat from the copyright holder, if said holder has sufficient influence and deep pockets.

So what is fair use, anyway? It’s basically an attempt to insert some wiggle room into the labyrinthine rules concerning copyright and what it’s okay to do with copyrighted material, making allowance for the need to make use of such material in order to comment on or criticize it, include it within an academic study, use it in the classroom, and other occasions where it’s unlikely that the user is directly interfering with the copyright holder’s rights.

There are four factors which are to be applied when considering whether your use is fair; however, much of the misunderstanding of fair use seems to arise from users not applying them, or being incompletely aware of them, or oversimplifying them (“my use is educational, therefore it’s fair”—which is not strictly true, and also what some people attempt to justify as “educational” can be rather entertaining).

The main criterion of fair use is that the use is limited and transformative, generally understood as either commentary or criticism, or parody of the original work. Examples would be quoting from a book as part of a review, or writing a parody of an original song—though parodying the entire song is unlikely to be considered fair (for this reason, Weird Al Yankovic gets permission from copyright holders of the songs he parodies, rather than relying on a fair use argument).

In this case, the podcaster read the entire work aloud and issued the recording as part of his podcast, with a minimal introduction. This is neither limited, nor transformative. A better choice would have been to quote from the essay, with commentary, and tell listeners where they could read the whole thing—or seek permission from the author to replicate the work, something the author would have been willing to grant upon request.

The second factor is the nature of the work. It’s easier to make a fair use claim for factual information than for creative work. In this case, the essay was an opinion piece, not a simple reporting of fact. In other words, the intent of the author was to express his experience and interpretation of events, not to be an encyclopedia. This blogger has a distinctive voice and a large following, but even if he had neither, the nature of the piece itself is interpretive and creative.

The third factor is the amount and substantiality of the portion taken. “Amount” is fairly obvious—the usual guideline is no more than ten percent—but what’s meant by substantiality? This refers to the “heart” of the work, which can be a bit nebulous, but basically can be interpreted as whatever is most distinctive or memorable about that work. In this case, the podcaster took the entire thing.

The fourth factor is whether the market for the work is affected. In this particular case, the podcaster initially asserted that the use was fair because the original author had made his work available for free in the first place; therefore, the market for the work, and therefore the author’s income, were not affected. This is true enough. But with so much content being made freely available and easily copied, there’s some question in my mind as to whether potential loss of income ought to be the sole consideration where this factor is concerned. At the very least, re-broadcasting someone’s work without a link back to the original is rude, even though people do it all the time. The podcaster also claimed that he’d made no profit off of the writer’s work, which is patently untrue since while the podcast can be accessed for free if you listen according to its broadcast schedule, a downloadable subscription costs money.

So it’s pretty obvious that this particular instance isn’t really fair, whatever the podcaster says. But of course the only way this can really be tested is by going to court, and as I mentioned previously, in most cases like these people don’t bother. (In this case, after considerable bluster and insult, the podcaster backed down.)

This kind of thoughtful consideration of whether a use is fair seems almost quaint, in these days when you can find the entirety of a newly published book online for free almost immediately, torrent new movies and games, and so on. It pretty much goes against the automatic impulse to share something cool as soon as you stumble upon it. But it takes a special kind of obnoxiousness to engage in that kind of sharing, whatever your motivation, and then bogusly claim that you’re engaging in fair use when called on it. The fifth, unspoken factor in fair use is whether you’re being a dick about it. Like the man says, don’t be a dick.

July 9, 2014
When the reader cannot come to the library, the library must come to the reader.

When the reader cannot come to the library, the library must come to the reader.

July 3, 2014
Superpowers granted upon MLIS.

Superpowers granted upon MLIS.

July 1, 2014
My version of that flow chart that’s been going around.

My version of that flow chart that’s been going around.

June 29, 2014

June 26, 2014

And how.

(Source: dbvictoria, via fanboy-news-network)

June 23, 2014
Check it out: Florida university library to lend drones to students

E-readers and laptop locks? So five minutes ago. The most forward-thinking libraries are lending remote-control helicopters:

June 17, 2014
Study Finds Major Inconsistencies in Journal Pricing @insidehighered

You don’t say.

7:24pm  |   URL: http://tmblr.co/ZTr8ex1I__922
Filed under: journals pricing 
June 16, 2014
Library, Space, and the NYPL

The recent walkback on the New York Public Library’s controversial renovation plans is instructive for any library pondering a massive overhaul (or just daydreaming about one, budgets being what they are). The pressure to remain relevant can lead libraries to make questionable decisions, but relevance is only one factor in play when it comes to determining how to use library space. Libraries are practically unique these days in being an indoor public space where you can enter and are not immediately pressured to spend money. (Of course your taxes have already paid for that space, but no one’s going to ask you if you’re a local taxpayer when you walk in the door.) Many of the objections to the proposed changes to NYPL’s iconic main library (you know, the one with the lions out front, and the poltergeist that totally disarrayed the card catalog in Ghostbusters) revolved around the idea that removing the books to offsite storage and adding more computers and seating areas would destroy the building’s personality as a sanctuary, a reflective space in a world that seems to be running out of reflective spaces. Both what is known about the plan (and the library’s priorities as thereby revealed) and people’s objections say some useful things about the directions libraries are taking, what people understand about libraries nowadays, and what library patrons actually want. (The trend away from referring to “patrons” of libraries in favor of the more techno-administrative-oriented “users” may highlight a bit of a disconnect here.)

To some extent, the controversy over NYPL’s plans is reflected in just about every library in America with the time, if not necessarily the funding, to contemplate its future. At my own small academic liberal arts library in the Pacific Northwest, a constant tension exists between making space for computers, group work, and collaborative synergy on the one hand, and comfortable seating, individual study space, and quiet reflection on the other. And—oh yeah—books, those things that a library is ostensibly for.

Lest anyone think that this conflict is principally generational, I observe that much of the pressure against digitizing everything comes from our students, many of whom still prefer paper for longer-form reading, and much of the neglect of the print collection comes from faculty working in disciplines where the monograph has always been a marginal form at best. (The only reason some of these departments still have a book budget is the acquisitions formula to which we are required to adhere, in the absence of having formulated anything better.) The library today is a hybridized environment, and most people are pretty okay with that as long as they can find, and do, what they want within it. The people who insist that the population would be better served by issuing everyone a computer and an Internet connection (these people have never watched the average library patron try to Google something) on the one hand, and the people who still bewail the loss of the card catalog on the other, are basically outliers—albeit outliers the library still endeavors to serve.

There’s a lot to unpack about what happened at NYPL, and the story is still unfolding. The dimensions of the issue span aesthetics, finances, nepotism, and more. You probably have to be a New Yorker to comprehend it all, but as a librarian I’m interested in what the controversy says about the identity of libraries in this (not really) new digital age, because it’s instructive to librarians and patrons alike.

The proposed removal of books to offsite storage (in New Jersey, worse yet) upset a lot of people more than the NYPL apparently expected—an expectation perhaps moderated by the fact that the library had been storing books offsite for years. This is, in point of fact, not unusual for large collections; during a tour of Oxford’s iconic Bodleian Library earlier this year, I learned of the effort to consolidate the library’s numerous offsite storage facilities—squirreled like acorns all over the greater Oxford area—into a single, large, climate-controlled location in order to ease maintenance and retrieval. Of course the challenge of offsite storage is still being able to get a particular book when you want it, and if you’re a researcher, no other book will do. A turnaround time of 24 hours (or less!) is one thing, and might alleviate the concerns of what I call psychic distance—a book in a closed-stack library is equally inaccessible whether it’s right downstairs or across the state line, but from the patron’s perspective that greater distance makes a difference. If the time to fetch a book from remote storage stretches from hours into days, however, then from the requesting patron’s perspective the decision to move books to remote storage is in no way an improvement—and they are right. Instant access to online materials is all very well, but when what you need is a print book that was available from just downstairs but now has to be brought in from out of state, it’s a step in the wrong direction.

Balancing this we have the question of what to do with an aging collection being stored in a space that hastens its deterioration. Most books in a given library are rarely consulted; some are never consulted at all. At my library, such books are regularly removed to make way for newer, more frequently consulted works, but my library lacks NYPL’s preservation- and research-oriented mandate, which requires that materials be not only stored, but stored in a way which lengthens their shelf life. This is reportedly the rationale behind removing the books from the lower levels of the 42nd Street branch and storing them in a modern, climate-controlled facility, though the people arguing that retrofitting the building would be cheaper than completely altering its interior structure definitely have a point.

But when such a plan is tied to the opening of space to public use, particularly when that opening of space comes with (noisy, troublesome) computers, it’s hard for the traditionally-minded library patron to see anything other than destruction. Many of those objecting to NYPL’s plan put it in just those terms, articulating one side of a contest over the use of public space. This sort of contest plays out in public spaces all the time, be they sidewalks, parks, or bike lanes (oh god, the contest over bike lanes, starting with whether they should exist and going all the way to whether bicycles should be licensed to pay for them). On the other hand, since the abandoned plan would have reduced the available public space within the libraries overall—closing two other branches and consolidating their collections and services with the main branch—many of the objections are less concerned with which space is open to the public, and more concerned with whether there would have been enough of it.

It isn’t, or ought not to be, a war between computer users and book researchers, between closed stacks and a circulating collection, between digitization of archival sources and preservation, between community education and quiet space for in-depth research by experienced practitioners. Nor should it be a war between the library’s patron base, and the library’s own collective perception of its mission. Nor yet should be it a war between the library and its governing administration, which all too frequently does not understand the situation on the ground. Yet those tensions exist, and when a library proposes a massive change, they easily escalate into active conflict.

The dominant takeaway is to give your stakeholders an opportunity to have a voice in the library’s future—and to make sure they know that they have a voice. I’ve seen many libraries and other institutions advance some sort of feedback mechanism with the best of intentions, and then fail to make their most invested stakeholders aware that the mechanism exists. The more likely someone is to object to a change you’re contemplating, the more important it is to get their input. You never know: they just might have a good idea. The other critical element is to solicit feedback in multiple ways. Different patron groups access the library’s services in different ways, and become aware of what the library is doing in different ways. The two principal patron groups at my library are students and faculty. We get a ton of useful student feedback during Library Snapshot Day, because many, perhaps most, of our students use the library building (sometimes they even check out books). But we get very little faculty feedback this way, because relatively few of our faculty come into the building on a daily or weekly basis. For them, another outreach method yields more results.

Judging by the reaction to NYPL’s initial plan, the people who used the research library for its traditional purpose felt blindsided by the massive proposed changes to the building’s function, and had serious questions about the library’s plan to close and sell two other buildings. While one hundred percent coverage of a library’s patron base is never possible—there’s always going to be someone you don’t manage to reach—it’s important to cultivate connections with your core boosters to ensure that they’re kept in the loop. In a way, the widespread outrage over the proposal did the library’s job for it, as it pushed the story beyond the local and into national channels (though it doesn’t hurt that the New York Times is the library’s hometown paper).

But there’s a more interesting question here about how libraries exercise that tension to fulfill their missions. It is not solely a tension between old and new, though it is easy and tempting to describe it in those terms. I would describe it instead as a tension between stasis and change, something that libraries have pretty much always had to deal with. In many ways libraries are forced into a reactive role, responding to changes in how knowledge is made available, how people find and access it, the ways in which they make use of it, and how it is to be preserved for the future. This means that libraries cannot abandon old formats or standard ways of doing things the instant something new comes along; nor may they adopt every novelty. One reason that so many libraries have been slow to adopt e-books is that e-books challenge every facet of a library’s operation, from preservation (who preserves the digital file if it’s hosted with the vendor?) to ownership (e-books are typically licensed, not purchased) to format (and the formats and interfaces available to libraries up until now have been almost without exception terrible) to, most importantly, how they are read (the impact on the reading experience of reading on a screen instead of a page).

What is clear is that a library’s mandate, particularly that of a library serving such a large and diverse population as NYPL, cannot be met unilaterally. The essential tensions of how libraries function are never to be resolved—but neither should they be exacerbated. In choosing to pursue a multifaceted approach by keeping both the main branch and the mid-Manhattan branch open, rather than trying to force diverse operations into a single facility, NYPL is not merely keeping its options open. It’s showing responsiveness to the people it serves. There is much in this case that proves instructive to other libraries contemplating their futures.

Read more:

This Human of New York Takes His Libraries Seriously (The Atlantic)

The Truth about the Central Library Plan (Committee to Save NYPL)

Humans of NY Post Reignites Debate over New York Public Library Renovation

Library Reveals Details and Costs of Upgrade Plan

June 13, 2014
Academic Publisher Fights Publication Of Paper Criticizing Publishers' Price Increases And Profits | Techdirt

I’m shocked, just shocked.

Oh, wait. No, I’m not.

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