The story is in The Scholarly Kitchen. It’s pretty stunning news, especially after the acquisition of SSRN and the controversy over licensing that occurred shortly after that takeover. So, is the fate of successful open-access scholarly archives to ultimately turn into arms of large corporations? —Mark
Category Archives: Open Access
Launched on May 8, 2017 LawArXiv is an open access repository for legal scholarship. The repository was developed by LIPA, MALLCO, NELLCO and Cornell Law Library. “Our partnership in the LawArxiv project is a reflection of Cornell Law School’s deep and enduring commitment to open access principles, and the availability of legal information to all,” said Femi Cadmus, Edward Cornell Law Librarian, in this press release. — Joe
Congratulations to LII! Bob Ambrogi spoke with cofounder Tom Bruce about LII’s origins and where LII stands today here. — Joe
From the April 5, 2017 letter to the chairman and ranking member of the Senate Committee on Homeland Security and Governmental Affairs:
We support the OPEN Government Data Act for several reasons. First and foremost, this legislation would institutionalize the federal government’s commitment to open data and allow the United States to remain a world leader on open data. Second, adopting a policy of open by default for government data would ensure that the value of this public resource would continue to grow as the government unlocks and creates new data sets. Third, a firm commitment to providing open data as a public resource would encourage businesses, non-profits, and others to invest in innovative tools that make use of government data. And, according to the Congressional Budget Office’s review of the 2016 unanimously passed Senate bill, taking these steps would not have a significant impact on agency spending.
Here’s the text of S. 760. — Joe
From the announcement:
[W]e are launching a new project to download all of the free opinions and orders that are available on PACER. Since we do not want to unduly impact PACER, we are doing this process slowly, giving it several weeks or months to complete, and slowing down if any PACER administrators get in touch with issues. … In this project, we expect to download millions of PDFs, all of which we will add to both the RECAP Archive that we host, and to the Internet Archive, which will serve as a publicly available backup.1 In the RECAP Archive, we will be immediately parsing the contents of all the PDFs as we download them. Once that is complete we will extract the content of scanned documents, as we have done for the rest of the collection.
H/T to Gary Price’s InfoDocket report. — Joe
Round one in the Official Code of Georgia Annotated lawsuit: “The Copyright Act itself specifically lists ‘annotations’ in the works entitled to copyright protection.”
Last week, US District Court Judge Richard Story issued a ruling in favor of the Georgia Code Revision Commission to preserve the State of Georgia’s claimed copyright of the Official Code of Georgia Annotated (OCGA). Here’s the text: Code Revision Commission et al v. Public.Resource.Org, Inc. The case turned on Lexis-supplied annotations to an official state code that in this rare instance happens to be annotated; most, if not all, other official state codes are unannotated. As value-added material, the annotations entitled the work to copyright protection according to the district court. Wait ‘n see.
At the URL for Public Resources’ OCGA archive, Carl Malamud posted the following message:
Dear Fellow Citizen:
You have been denied permission to access this document at this time due to ongoing judicial proceedings in the following case: Code Revision Commission et al v. Public.Resource.Org, Inc. (Case 1:15-cv-02594-MHC, U.S. District Court for the Northern District of Georgia)
Your access to this document, which is a law of the United States of America, has been temporarily disabled while we fight for your right to read and speak the laws by which we choose to govern ourselves as a democratic society.
To apply for a license to read this law, please consult the Code of Federal Regulations or applicable state laws and regulations for the name and address of a vendor. For more information on edicts of government and your rights as a citizen under the rule of law, please read my testimony before the United States Congress. You may find more information on our activities at Public Resource on our registry of 2015 activities.
Thank you for your interest in reading the law. An informed citizenry is a fundamental requirement for our democracy to work. I appreciate your efforts and apologize for any inconvenience.
March 23, 2017
For an excellent article covering this development, see Joe Mullin’s If you publish Georgia’s state laws, you’ll get sued for copyright and lose: In some states, you can’t read the law without paying a corporation (ars technica, March 30, 2017)– Joe
Who owns public law? Casemaker files answer and counterclaim in Fastcase dispute over publishing rights to Georgia law
Bob Ambrogi reports that Casemaker had a change of heart and is now preparing to fight Fastcase over the publishing rights to the Georgia Administrative Rules and Regulations. Casemaker, as you may recall, claims to be the only authorized distributor of Georgia Administrative Rules and Regulations by virtue of its contract with the State of Georgia. Fastcase claims that a private publisher cannot create its own exclusive rights in non-editorial, non-enhanced public law by contract with the government.
For details about this latest development, including the text of Casemaker’s answer to Fastcase’s complaint, see Bob Ambrogi’s So Much for Casemaker Saying It Will Not Fight Fastcase Lawsuit. — Joe
The Harvard Law Record published an opinion piece, The Blue Wars: A Report from the Front, by Carl Malamud about the ongoing dispute the Harvard Law Review Association is having with Malamud because of his activities in co-creating and hosting the open-source Baby Blue’s Manual of Legal Citation on Public.Resource.Org. See our earlier post, Is a uniform system of citation an open-source feature of our legal system’s infrastructure? Malamud’s Harvard Law Record article details the history of this dispute. Lawsuit forthcoming? — Joe
Open access law review articles attract more attention earlier and endure longer than their non-OA counterparts
What is the scholarly impact of providing open access to law reviews? In The Open Access Advantage for American Law Reviews, Edison 2015-03A (2015) [SSRN], James Donovan (Kentucky), Carol Watson (Georgia) and Caroline Osborne (Washington & Lee) provide the answer.
In answer to law faculty questions about how participation in an open access repository will affect the works’ impact, the present research offers a definitive reply. When looking at citation by other law reviews to all the author’s work, the averaged increase in citations in flagship journals is 53%. In general, half of these cites will be dispensed in the first six years after the article’s publication. OA articles will attract more attention earlier in the lifecycle of the publication, and endure longer on the intellectual stage.
For authors, the message is clear: The open access advantage is real, sizable, and consistent. The minimal effort to upload an article onto an OA platform such as SSRN or a school’s repository pays rich dividends in the currency of subsequent citations in law reviews and court decisions.
Here’s the abstract to this very informative article:
Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and institutions can expect.
Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a lower OA advantage (11.4%) due to the attention such prestigious works routinely receive regardless of the format. When focusing on the availability of new scholarship, as compared to creating retrospective collections, the aggregated advantage rises to 60.2%. While the first tier advantage rises to 16.8%, the mid-tiers skyrocket to 89.7%. The fourth tier OA advantage comes in at 81.2%.
Citations of legal articles by courts is similarly impacted by OA availability. While the 15-year aggregate advantage is a mere 9.5%, new scholarship is 41.4% more likely to be cited by a court decision if it is available in open access format.
Recommended. — Joe
In Takedown and Today’s Academic Digital Library [SSRN], a report to be presented at The Future of the Library in the Digital Age Conference on March 25, 2016 at Ohio State University, Moritz College of Law, Brianna L. Schofield and Jennifer M. Urban suggest that managers of academic digital repositories will likely see an increase in formal DMCA takedown notices as their digital offerings grow.
The authors found that academic libraries have not yet developed shared norms and best practices for handling DMCA takedown requests. “As libraries continue to digitize collections and grow open access repositories, their long experience with less-formal requests and their relatively well-developed norms for handling those requests can serve as a foundation for handling the potential growth in DMCA notices,” write Schofield and Urban (both UC Berkeley). “In addition, the growth itself might be curtailed if stakeholders take steps to limit the need to use the DMCA notice and takedown process.” Towards that end, the authors make the following recommendations:
- Academic libraries should continue to educate authors about author-friendly publishing practices, and authors should retain more control of their own works.
- Publishers, authors, and academic libraries should take steps to make the terms of publication agreements transparent.
- Academic libraries should continue to support—and authors should embrace—open access policies.
- Academic libraries should consider developing shared norms and best practices for DMCA notice handling similar to those they have developed for non-DMCA requests.
- Academic institutions should ensure that librarians receive any DMCA notices targeting library materials that are sent to DMCA agents in other departments, and that library-developed best practices are followed in handling these notices.
- Publishers should develop and publicly communicate reasonable notice-sending policies.
- Publishers should ensure that REOs [rights enforcement organizations], if used, comply with publisher notice-sending policies.
- Academic libraries should consider creating educational materials about the counter notice process and tools that make it easy for authors whose works are challenged to send counter notices if their content is inappropriately targeted for take down.
Recently the GPO released the National Plan for Access to U.S. Government Information: A Framework for a User-Centric Service Approach to Permanent Public Access, explaining “[t]his is the framework for moving forward in the digital age, meeting our challenges, and achieving our vision of providing Government information when and where it is needed.” Quoting from the FDLP’s National Plan project site:
The National Plan sets the groundwork and provides long-term strategies for the success and growth of:
•The Federal Depository Library Program (statutory program)
The FDLP will continue its evolution to be agile, scalable, flexible, user-centric, and outcomes-based. Extensive partnerships with Federal depository libraries and other Federal agencies and organizations will be key to long-term growth and success. Providing depositories with a rich education program, new services, and flexibilities that will allow for serving diverse communities in the most comprehensive way possible are top goals of the FDLP.
•The Cataloging and Indexing Program (statutory program)
The C&I Program will continue to enhance its cataloging and metadata creation through the National Bibliographic Records Inventory and its lifecycle management of Government information processes. Acquiring, harvesting, cataloging, discovery tools, and preserving will all play roles in the achievement of a comprehensive Catalog of U.S. Government Publications, both historical and moving forward. Again, partnerships with Federal depository libraries and other Federal agencies and organizations will be key to long-term growth and success.
•The Federal Information Preservation Network (GPO strategic initiative)
The creation of FIPNet affords the public with guaranteed, long-term access to resources, materials, and expertise from libraries, Government entities, coalitions, and organizations. This program will ensure permanent public access to historic, at-risk publications and resources of significant value to the public. Depository libraries will benefit from the added resources and the sustainability of those resources for their patrons. Based on formal partnerships with GPO, FIPNet partners will provide an added guarantee that our rich history will be accessible for future generations to come. GPO is currently in the process of developing types of FIPNet partnerships, standards, guidelines, and best practices.
Hat tip to Gary Price’s LJ InfoDocket post. — Joe
In The new (and much improved) ‘Bluebook’ caught in the copyright cross-hairs (The Volokh Conspiracy), David Post writes that “[w]ar is brewing over the most boring piece of intellectual property imaginable: the ‘Bluebook… .’” At issue is the alpha release of NYU Law professor Christopher Sprigman and Carl Malamud’s open-source Baby Blue’s Manual of Legal Citation (Public.Resource.Org, January 1, 2016). From Baby Blue’s Preface:
It is important to understand, when we are talking about “The Bluebook, A Uniform System of Citation,” that we are talking about two different things. There is a product, a spiral-bound booklet that sells for $38.50, which is accompanied by a rudimentary web site available to purchasers of the product.
Underlying that product, however, is something much more basic and fundamental, a uniform system of citation. Unpaid volunteers from a dozen law schools, under the stewardship of four nonprofit student-run law reviews, have labored mightily to reach a consensus standard for the citation of legal materials. This open consensus standard was developed, with no compensation to the authors, for the greater benefit of the legal system of the United States. By clearly and precisely referring to primary legal materials, we are able to communicate our legal reasoning to others, including pleading a case in the courts, advocating changes in legal policy in our legislatures or law reviews, or simply communicating the law to our fellow citizens so that we may be better informed.
We do not begrudge the Harvard Law Review Association one penny of the revenue from the sale of their spiral-bound book dressed in blue. However, we must not confuse the book with the system. There can be no proprietary claim over knowledge and facts, and there is no intellectual property right in the system and method of our legal machinery. The infrastructure of our legal system is a public utility, and belongs to all of us.
Kathryn Rubino’s Controversy At Harvard Law Over The Bluebook? (ATL) summarizes recent developments. — Joe
End Note: Download Sprigman et anon. al., Baby Blue’s Manual of Legal Citation (Public.Resource.Org, 2016).
In response to a takedown notice issued by Lawriter (dba Casemaker), Fastcase is seeking a declaratory judgement and injunctive relief in US District Court so that it can continue to publish the Georgia Administrative Rules and Regulations for the Company’s 800,000 member subscription base, including, interestingly enough, members of the Georgia state bar. In a nutshell, Fastcase is hoping for a ruling that states that no one can own and publish exclusively public law. Here is the complaint in what may be a landmark case for the Open Law movement. — Joe
Update: Bob Ambrogi reports that Lawriter will not fight Fastcase’s lawsuit.
Sarah Glassmeyer has released the results of a survey of state primary law. State Legal Information Census (PDF). Here’s the abstract:
This report presents findings from a survey of state level primary legal information. Primary legal information includes code (codified statutes passed by state legislatures), regulations (codified collections of rules passed by administrative agencies) and case law (appellate court decisions). This survey was done with the goal of reviewing the free and open status of this legal information.
Findings indicate that there exists at least 14 barriers to accessing legal information. These barriers exist for both the individual user of a resource for personal research as well as a institutional user that would seek to republish or transform the information. At the time of the census, no state provided barrier-free access to their legal information.
Furthermore, analysis of the legal information provided by states shows that it is impossible to do any but the most basic of legal research for free using state provided legal information sources. Current collections allow for citation retrieval and some basic keyword searching. No state allows for federated searching of legal information collections. The universal lack of a citator for case law renders these collections, as a practical matter, useless and would be considered malpractice for a legal practitioner to rely upon. There is also a worrisome lack of archival material maintained by states. Not only does this affect one’s ability to do comprehensive research, but it also could be indicative of a lack of adequate preservation.
States were scored and ranked based on the openess of their legal publication practices. On a scale of 0 – 24, the highest score achieved was 18. The lowest was 8 and the median was 14. These results were compared against the adoption of the Uniform Electronic Legal Information Act (UELMA) and it was found that adoption of UELMA did not correlate to barrier free publication practices.
From the Press Release:
Free online access to the official published judicial opinions of the Nebraska Supreme Court and Nebraska Court of Appeals will be available to the public beginning January 1, 2016.
Text-searchable opinions dating back to 1871 will be available for the Nebraska Supreme Court. The full collection of opinions of the Nebraska Court of Appeals, beginning with its establishment in 1992, will also be offered.
Previously, appellate court opinions were printed or were available online through various for-profit subscription services. All published opinions will be provided via the Nebraska Appellate Courts Online Library at ne.gov/go/opinions. Once printing of judicial opinions in the Nebraska Advance Sheets and the Decisions of the Nebraska Court of Appeals ceases in June 2016, opinions will be available exclusively online.
Newly released opinions of both courts will continue to be available for 90 days on the Nebraska Judicial Branch Web site athttps://supremecourt.nebraska.gov/ and from the Clerk of the Supreme Court and Court of Appeals upon request, and from any electronic provider of legal information choosing to provide them.
Official opinions in the online library will be accessible 24/7 using smart phones, tablets or computers from anywhere with Internet access. Access via the online library allows the appellate courts to make their judicial opinions more easily available to the public.
Nebraska joins Arkansas and Illinois in dropping printed opinions in favor of online access. Hat Tip to Rich Leiter for the news.
Here’s a bit of news that archivists and historians may find useful on this anniversary of Pearl Harbor and the entry of the United States into World War II. The Franklin Roosevelt Presidential Library has placed some 46,000 pages of speeches in draft, transcript, and final form online. This collection is accompanied by another which comprises the complete audio recordings available of those speeches. The site describes the collection:
The FDR Library, with support from AT&T, Marist College and the Roosevelt Institute launches online one of its most in-demand archival collections – FDR’s Master Speech File – over 46,000 pages of drafts, reading copies, and transcripts created throughout FDR’s political career. Presented alongside the Speech File is the Library’s complete digital collection of Recorded Speeches of FDR.
The earliest recording is dated 1920. That’s pretty amazing given the state of recording technology in that era. It’s more amazing that it can be downloaded in the ubiquitous MP3 format. It’s that casual.
I’ve visited this site plenty of times in the past. There is a wonderful collection of public domain photographs that document the Great Depression, the New Deal, and World War II. There is some amazing stuff in these collections. Speaking of Pearl Harbor, scroll halfway down this page for digitized research materials relating to Franklin Roosevelt and the Day of Infamy.
The original caption reads: “USS West Virginia and USS Tennessee after attack on Pearl Harbor, December 7, 1941.” Archivist note: USS West Virginia, BB-48, sinking after being hit with seven torpedoes and two armor-piercing bombs. Along side is USS Tennesse, BB-43, after being hit with two bombs and being damaged by the explosion of the USS Arizona. In the foreground are yard patrol craft which appear to be assisting in damage control and rescue operations.
The University of California System issued a directive near the end of October that require faculty to place their scholarly works in open access sources:
Each Faculty member grants to the University of California a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, for the purpose of making their articles widely and freely available in an open access repository. Any other systematic uses of the licensed articles by the University of California must be approved by the Academic Senate. This policy does not transfer copyright ownership, which remains with Faculty authors under existing University of California policy.
* * *
To assist the University in disseminating and archiving the articles, Faculty commit to helping the University obtain copies of the articles. Specifically, each Faculty member who does not permanently waive the license above will provide an electronic copy of his or her final version of the article to the University of California by the date of its publication, for inclusion in an open access repository. When appropriate, a Faculty member may instead notify the University of California if the article will be freely available in another repository or as an open-access publication. Faculty members who have permanently waived the license may nonetheless deposit a copy with the University of California or elsewhere for archival purposes.
Notwithstanding the above, this policy does not in any way prescribe or limit the venue of publication. This policy neither requires nor prohibits the payment of fees or publication costs by authors.
That last line is interesting. There are two articles at the Chronicle of Higher Education worth reading that relate to the issue of fees. One is What Open-Access Publishing Actually Costs by Ellen Wexler, and the other is What a Mass Exodus at a Linguistics Journal Means for Scholarly Publishing, also by Wexler. Both are pretty good examinations of issues surrounding the hidden costs of open-access publishing. The first article (later in date) points out that placement of scholarly articles even for open access can require a publication fee. Comments there point out that someone is paying for the time to peer review (usually the university or college employing the reviewer through salary), or providing the server space, or other elements that go between the publication and its editorial and distribution network.
The other article tells of the mass resignation of the editorial staff for the journal Linqua, published by Elsevier. The staff had asked that the journal become open-access and given to them to pursue that goal. Elsevier unsurprisingly said no. The company has said that it continue publishing the title under a new team. The article states that authors currently must pay some $1,800 per article to make it free to readers among other costs.
This isn’t necessarily the model for law reviews. They are edited by students and usually not peer-reviewed. The trend is to make content available for free via the law journal’s web site. Even still, the University or Law School has underlying costs to make this happen by paying for the underlying technical equipment and/or subsidizing the loss of subscriptions. The takeaway from Wexler’s articles is that free really isn’t really free. Costs shift to someone else. Whether that model is sustainable remains to be seen.
The DMCA Exemptions for 2015 were announced by David S. Mao, the Acting Librarian of Congress, and effective as of October 28. This is a series of exemptions allowed every three years upon review. There is now a limited exemption for jailbreaking software in cars, 3D printers, phones, tablets, other portable devices, games, and allowance for the use of excerpted DVD clips for educational use. Some of the items on the list, such as limited use of DVD excerpts had been approved in last reviews. The process requires a renewal to prevent the exemption from expiring.
I often found the refusal to exempt making archival copies of DVDs a bit hypocritical as there are quite a few software packages that can accomplish this for sale on large commercial retail sites. And then there are stories such as a review of the Five Best DVD Ripping Tools from Lifehacker. Let me state up front that I am not encouraging anyone to violate copyright law. I’m merely pointing to examples that show how little the prohibition against copying/ripping seems to be enforced. Maybe this software is bought mostly by academics for classroom use.
Rick McKinney, Assistant Law Librarian, Federal Reserve Board Law Library, posted the following announcement on various AALL lists:
The Federal Law Librarians Special Interest Section of the Law Librarians Society of Washington, D.C., Inc. is pleased to announce the availability on its website of a new online resource entitled Quick Links and Sources to U.S. Court Opinions. The new website presents quick links to all major sources for U.S. Court opinions including sites for recent years, sites for recent and historical years, and subscription sites. It also presents direct links to court opinion sites of specific U.S. courts such as the U.S. courts of appeals as well links to opinion sites to those courts before the 1990’s. Each specific’s court’s abbreviation and city location can also be found and there is an example of how new slip opinions can be cited. The new website is also linked on LLSDC’s Legislative Source Book.
Bookmark it. — Joe
The State of Georgia is suing Public.Resources .Org, Inc. and Carl Malamud in federal court for posting copies of the Official George Code Annotated on the Public.Resources.Org. Georgia contracts with Lexis to create annotated copies of the Code where Lexis fills in the annotated material in what appears to be a work for hire as Georgia claims copyright in the annotations and value-added materials. In some respects, it explains why Lexis wasn’t a co-plaintiff. The State does not claim copyright in the text of the Code itself. The complaint is seeking injunctive relief and requesting that all scanned copies be removed and destroyed, and yes, attorney fees.
I think it would have been much easier for the State of Georgia if copyright remained with Lexis. The ownership would have been clearer. It’s a murky situation otherwise. I guess the question the Court is whether the State can actually claim a copyright in this case. The United States government, as an example, disclaims copyright in most cases, but there are exceptions. Two of these indicated at USA.gov are:
- Works prepared for the U.S. government by independent contractors may be protected by copyright, which may be owned by the independent contractor or by the U.S. government.
- The U.S. government work designation does not apply to works of U.S. state and local governments. Works of state and local governments may be protected by copyright.
The complaint his available through a link with a story at The Register, which is a U.K. based technology news site. I’m a big fan of the site due to the somewhat snarky attitude the site takes at tech news. The story in the Register about this case notes that Georgia effectively calls Malamud a “terrorist.” Here are the excerpts from the complaint where Georgia makes that claim:
20. On information and belief, Defendant is employing a deliberate strategy of copying and posting large document archives such as the O.C.G.A. (including the Copyrighted Annotations) in order to force the State of Georgia to provide the O.C.G.A., in an electronic format acceptable to Defendant. Defendant’s founder and president, Carl Malamud, has indicated that this type of strategy has been a successful form of “terrorism” that he has employed in the past to force government entities to publish documents on Malamud’s terms. See Exhibit 2.
21. Consistent with its strategy of terrorism, Defendant freely admits to the copying and distribution of massive numbers of Plaintiff’s Copyrighted Annotations on at least its https://yeswescan.org website. See Exhibit 3. Defendant also announced on the https://yeswescan.org website that it has targeted the States of Mississippi, Georgia, and Idaho and the District of Columbia for its continued, deliberate and willful copying of copyrighted portions of the annotated codes of those jurisdictions. Defendant has further posted on the https://yeswescan.org website, and delivered to Plaintiffs, a “Proclamation of Promulgation,” indicating that its deliberate and willful copying and distribution of Plaintiff’s Copyrighted Annotations would be “greatly expanded” in 2014. Defendant has further instituted public funding campaigns on a website http://www.indiegogo.com to support its continued copying and distribution of Plaintiff’s Copyrighted Annotations. Defendant has raised thousands of dollars to assist Defendant in infringing the O.C.G.A. Copyrighted Annotations.
Terrorism, seriously? Someone explain to me how this adds to the substance of the complaint. It’s not as if black helicopters will be circling Atlanta at the end of the trial, not over annotations at least.