Thanks to Kevin Smith’s ever excellent blog, Scholarly Communication @ Duke, for updating us on the GSU e-reserves litigation.  About that case now before the 11th Circuit, Smith reminds us that “[t]he very academics that are vilified as thieves in this lawsuit are the ones who produce the content that Oxford, Cambridge and Sage take, usually for free, to resell at a high profit.”  Smith links to University of Toronto law professor Ariel Katz’s post about the recent settlement reached by two Israeli publishers and the Hebrew University with regard to fair use in e-reserves.  That agreement seems to be an eminently reasonable way forward that, according to Smith, “indicates a real commitment to scholarship and education on the part of these Israeli publishers, something wholly lacking from the U.S. plaintiffs.”

“[L]aw school librarians have willingly contributed to some of the negativity that legal education has attracted.”

In the Fall 2013 issue of LLSDC’s Law Library Lights, Steve Young, Senior Reference Librarian at the Kathryn J. DuFour Law Library at the Catholic University School of Law suggests academic law librarians searching for the causes for the crisis in legal education take a careful look in the mirror. Vendors and law librarians of all sorts will find this piece bracing:  http://www.llsdc.org/assets/LLL/57/llsdc%20newsletter%2057.1.pdf.

Two Major Take Aways:

1. Ebooks are not books.

2. They can be anything we want them to be.

Ed Walters of FastCase told us that librarians and vendors can work together to make ebooks that meet user needs and do not hew to outdated book-based metaphors.  Jason Wilson of Jones McClure reminded us of the scope of the challenge ahead and the sheer number of choices we have to make in designing the electronic legal information environment.  Jean O’Grady of DLA Piper, and Scott Meiser of LexisNexis helped us understand where we are now with ebooks and where we might go.

Please keep reading CRIV Blog for a continuation of this extremely important conversation.

AALL Seattle, CRIV Vendor Roundtable, 7/15/2013, 11:45-12:45

Lexis eBooks can be accessed directly via each library’s ILS rather than requiring end users to log onto or to download some additional proprietary platform. Thompson Reuters has a different philosophy.  They believe that in order to achieve full multimedia capabilities for West eBooks, a full-function proprietary application is required.  However, many of the librarians in the room feel that eBooks should not be tied up in proprietary platforms.  For these librarians, accessibility and ease of use trumps user experience.

Ed Walters of Fastcase asks, “Do users actually prefer apps to eBooks?”  Various vendor reps suggest that we should not be too wrapped up with any particular label.  Web site, eBook, database, all of these will converge.

Guest Blogger: Ed Walters, CEO of Fastcase

My eBook reader of choice is Apple’s iPad, either using the Kindle app or Apple’s iBooks.  I am a big supporter of story and metaphor, and I like reading on my iPad, too. Skeuomorphic design, or design that attempts to mimic reality, has been the hallmark of Apple’s iOS operating system until very recently. The metaphor of selecting and opening a make-believe book, and turning pages that don’t actually exist, engages readers and allows them to feel comfortable reading in a digital space.

Publishers, though, tend to run into trouble when they try to extend this book-and-shelf metaphor too far, beyond the reading experience and into the distribution and pricing of eBooks. Harper-Collins drew jeers, and rightly so, in 2011 when they introduced a plan to sell libraries Mission Impossible eBooks, which would self-destruct after twenty-six checkouts. So far, and much less egregiously, legal publishers have for the most part been sticking to a similar, increasingly anachronistic model: selling one eBook at a time, to be checked out by one reader at a time, and which can’t be recalled if needed by someone else before it comes due.

One of the most important features of digital information is that it is not a scarce resource. In a physical library, a book must occupy its place on the shelf and can only be checked out by one reader at once.  But eBooks aren’t scarce resources – everyone in the organization could read an eBook without affecting anyone else’s ability to view it.

So publishers confront a choice: do we license eBooks the same way we sell print books (or “pBooks,” as Joe Hodnicki calls them) – or do we create entirely new business models that reflect the abundant nature of digital eBooks?

The design of our eBook readers is skeuomorphic. Must our eBooks be skeuomorphic as well?

On Monday, July 15 at the AALL Annual Meeting in Seattle, CRIV is hosting (and I’ll be moderating) a conversation about this topic with some of the leading thinkers about the future of legal publishing.  It’s session E1: Off the Page and Beyond the Book: New Models for Buying and Selling Legal Information.

The presentation is being coordinated by Todd Melnick, Associate Library for Public Services at Fordham University School of Law, and the panel includes Jean O’Grady, Director of Research Services and Libraries at DLA Piper; Jason Wilson, Vice President of Jones McClure Publishing; and Scott Meiser Senior Director of Research Information at LexisNexis.

Many eBook publishers face the daunting task of transitioning from a print business to electronic, and recent experience with newspapers, music publishers, and movies suggest that this will be a major disruption of the traditional business.  Of course, publishers will need to protect their businesses and their authors. But this argues not for porting the business of the past into the future.  It means creating business models for the future of legal information.

Just because we call our digital files “books” doesn’t mean that we use them, or price them, or license them like paper books. As Oliver Wendell Homes said, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.”

On May 9, President Obama issued an executive order designed to make “open and machine readable” the default state of government information. A crucial raw material of democracy, i.e. government information, will be free and open to anyone.  Entrepreneurs will organize it in novel and useful ways and resell it with added value.  Non-profits and activists will look for ways to use it to help empower and liberate ordinary citizens. Law librarians ought to be in the vanguard of these efforts. The Executive Order is available here.

Thanks to Kevin Smith of Scholarly Communications @ Duke for announcing  this morning’s  release of the Supreme Court’s opinion in Kirtsaeng v. Wiley, a case that threatened the first sale doctrine for books manufactured outside of the United States.  Smith declares the opinion, “wonderful for libraries.”  The opinion is here. 

Law Libraries nationwide have been notified by Thomson Reuters that West is publishing a 5th series of the Federal Practice Digest.  Once considered a fundamental and essential legal research tool, the Federal Practice Digest in the age of Westlaw, Lexis, Bloomberg Law, and Google Scholar has become considerably less necessary to lawyers and law students.   The cost of updating the Federal Practice Digest, 4th and of purchasing and updating volumes of the 5th as they are produced is considerable.  I don’t wish to use this post to weigh the merits of the Federal Practice Digest but to suggest that we need to be having a broader discussion about how to end the cycle of price increases and cancellations that now seems to characterize the relationship between legal information vendors and law libraries.  Technology should make legal information cheaper for law libraries to purchase and more profitable for legal publishers to produce.  Shouldn’t we begin talking about what a more sustainable legal information economy would look like and how we might get there? 

Last October, the U.S. Supreme Court heard oral arguments in Kirtsaeng v. John Wiley & Sons, Inc. where petitioner, Kirtsaeng earned a profit of $100,000 by buying low cost Thai manufactured textbooks in Thailand and selling them over the internet in the U.S.  John Wiley sued on copyright grounds and Kirtsaeng proferred the U.S. first sale doctrine as a defense.  While we await the Supreme Court’s ruling on whether the first sale doctrine applies to materials manufactured outside of the U.S., Kevin Smith, in his excellent blog, Scholarly Communication @ Duke (http://blogs.library.duke.edu/scholcomm), has  noticed what may be evidence of a growing hostility to the first sale doctrine among American publishers. 

AALL members were alerted to Kirtsaeng at the terrific program, Hot Topics in Copyright for Librarians, at the AALL Annual Conference in Boston last summer. SCOTUSblog’s Kirtsaeng page links to many of the merit and amicus briefs.

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Speakers: Shaun Esposito, CRIV chair 2011-2012,
University of Arizona College of Law; Stephen W.
Armstrong, Montgomery, McCracken, Walker &
Rhodes, LLP; Margaret Maes, AALL vendor liaison,
executive director of the Legal Information
Preservation Alliance (LIPA).

There is not much dispute that AALL is the sort of organization whose activities the ShermanAntitrust Act was intended to regulate.The United States Supreme Court held in American Society of

Mechanical Engineers, Inc. v. Hydrolevel Corp.,
456 U.S. 556 (1982) that a professional organization
can be held liable for the anticompetitive activities
of its members acting under the apparent authority
of the organization.

The question, therefore, is not whether the actions
of AALL staff and members are within the ambit of
antitrust law. The question is what behavior might
be considered by courts to be anticompetitive. This
question is of particular interest to members of
CRIV, whose official charge involves educating
the Association about the practices, including the
sometimes dubious practices, of information vendors.
It is certainly possible that something written in The
CRIV Sheet or on the CRIV Blog or sent to a listserv
by the CRIV chair could have an effect, maybe even a
substantial effect, on the market for legal information.
When does communication by CRIV about vendor
practices become anticompetitive? Under the Sherman
Act, what is CRIV permitted to say and do on behalf
of the AALL membership? Can CRIV effectively serve
the members of AALL under these strictures?
My conclusion after having attended this session is
that CRIV is not meaningfully hobbled by federal
antitrust law and that it can absolutely meet its charge
without running afoul of that law. CRIV can discuss
violations of the Code of Fair Business Practices and
can even engage in discussions about the price of
vendor products and services without violating the
Sherman Act. As with any law, the issue is fraught
with exceptions and provisos. But generally speaking,
open and honest dialogue about issues relating
to vendor activity, including pricing, is protected
under the first amendment and is not, by itself,
anticompetitive. The Sherman Act punishes collusion
in restraint of trade, not the dissemination of
information that might have the effect of
discouraging a buyer from doing business with
a particular vendor.

In the program’s longest and most revealing section,
Stephen W. Armstrong, a lawyer who is an expert
in antitrust, delivered a primer on how the primary
federal antitrust statute, the Sherman Act, affects
the activities of professional associations like AALL.
Very simply, Armstrong explained, the Sherman
Act prohibits combinations in restraint of trade.
Professional associations are combinations. These
combinations can violate the law in ways that are
per se anticompetitive, e.g. price fixing, limiting
production, or refusing to deal. Associations can also
violate the law if they engage in joint acts that are
not per se unlawful but have the effect of harming
competition. Many joint activities commonly entered
into by professional groups, such as forming
purchasing consortia, publishing salary surveys, and
lobbying, are not unlawful on their face but could
be considered restraints of trade if their effect on the
market is found to be anticompetitive.
What can AALL members, staff, and officers do, then,
to avoid violating antitrust laws? Avoiding per se
restraint of trade is relatively straightforward.
Members of the Association cannot agree to set the
price that they are willing to pay for a particular
service or product. They cannot conspire to refuse to
purchase a particular product or service or agree to
purchase it only under certain conditions. Neither the
Association nor a group of its members can solicit
or invite a group action such as a boycott. Joint
activities that are not per se unlawful can be engaged
in by the Association if they are carefully crafted to
encourage competition rather than restrain it. The
Association can publish wage and pricing surveys as
long as they are voluntary, aggregated rather than
specific, and do not reveal current or projected
pricing. Joint purchasing agreements are acceptable
if they do not control an overly large portion of the
market. Guides to fair business practices must be
voluntary, cannot be used to fix prices, and must
be prepared with the participation of all interested
parties. Lobbying is acceptable if it is consistent with
a competitive market.

Following Armstrong’s review of antitrust law and
its significance to AALL, Margie Maes and Shaun
Esposito offered hypothetical situations involving
activities by law librarians and asked Armstrong
to give his opnion on whether he thought these
activities were violations of antitrust law. Rather than
go through each hypothetical here, I will summarize
what I learned from the opinions the lawyer offered:
• Consortial purchasing arrangements like NELLCO
are not anticompetitive if they are limited (i.e.,
do not control the entire industry), if they create
demonstrable efficiencies for both buyers and
sellers, and if they allow active participation by
all parties.
• CRIV can report on particular vendors violating
fair business practices and can tell readers
about vendors that abide by those practices.
Disseminating valid information that has the
effect of harming a particular vendor’s business
is not a per se antitrust violation. CRIV cannot
solicit joint action against the violator, and it
should allow the violator to participate in the
discussion and present its side of the story.
• A small group of library directors can sit around
and complain about a particular vendor without
raising the specter of an antitrust violation. But it
would be a violation if the members of that group
agreed among themselves not to pay more than a
specific price for a service or product.
• Parallel conduct is not collusion. It is not an
antitrust violation for two or more AALL members
to make the same decision with regard to a price as
long as they did not make that decision in concert
with one another.
• Vendors must be meaningfully included in the
membership of AALL. An organization is less likely
to engage in, or be seen to engage in, a restraint of
trade if both sides of any potential transaction are
represented by that organization.

Large organizations tend to be risk-averse. They
want to err on the side of caution with regard
to antitrust law because the costs of defending
against an antitrust suit and the cost of paying
damages in the event of an adverse judgment
can be considerable. But an organization must
not be so averse to risk that it regulates itself into
irrelevance. What I take away from this session—
and this is my personal opinion and not a matter
of CRIV or AALL policy—is that a free and open
exchange of information participated in by both
vendors and librarians is not likely to lead to a
successful antitrust case against AALL. No AALL
member, officer, or staff member should ever
engage in per se restraints of trade or call for or
encourage boycotts or joint action of any kind.
But free and open exchanges of information,
even about matters of price, have a place at our
conferences and in our publications.

As you know, Westlaw plans to stop supporting their stand-alone Westlaw printers in law schools on June 30, 2013.  Below is a link to a three question survey on the topic.  I’d be very grateful if academic law librarians would complete the survey and I will publish the results in the CRIV Blog and on relevant listservs if I get a meaningful number of responses. The survey is here: http://www.surveymonkey.com/s/HL6T7XB