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Month: June 2012

Statistical Abstract of the United States: getting access to the 2013 edition

This is from the department of Probably Everyone Knew This But Me. I’d been aware that ProQuest had taken over the Statistical Abstract, but I hadn’t realized that they were also producing a print version of the work. So for those of you who are looking at options for your 2013 edition, here they are:

So there you have it.

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ENGL 395: Latin@Bodies on the (Poetry) Line [session 2]

As I mentioned earlier, this past term an English professor and I repeated an experiment that I’d conducted with American Studies juniors last year, wherein we integrated information literacy concepts into several key points in their seminar. By the end of the term, I met with this seminar 4 times, sometimes for as little as 10 or 15 minutes, and sometimes as long as the full class period. In every case, I worked with the students on concepts that were simultaneously part of an advanced information literacy “curriculum” of sorts as well as timed to help them accomplish an upcoming assignment.

Here’s the overview:

  1. Presearch — identifying and preparing to join scholarly conversations
  2. Bibliography as an intellectual product (Your are here)
  3. The Literature Review — mapping your scholarly conversation
  4. Creativity in Constraint

Session 2: Bibliography as an Intellectual Product

This session lasted about 15 or 20 minutes. I arrived at the beginning of the class, and participated in a discussion about readings they (and I) had done, and then transitioned into a brief discussion about bibliographies. After this session, students would be preparing an annotated bibliography as one of the initial stages working up to their final paper.

We started by looking at the bibliography in one of their readings, pulling out examples of entries there that illustrated the building blocks on which the author had built the article. Some entries gave us background information, some gave us a theoretical grounding, some pointed us to other scholars who were part of the same critical conversation about the topic.*

From there, we expanded on our notion of what bibliographies do. They are not lists, and they’re not incidental. They’re also not busy-work. Rather, they’re just as much an intellectual and rhetorical product of the author as is the prose of the argument. They map out the boundaries and the interlocutors that are part of a given scholarly conversation. They provide citations for key theoretical works that undergrads have trouble finding on their own (or knowing which will be useful for their projects). For undergrads especially, they also point toward important works that are part of the conversation but that would never come up in the search process because their titles and descriptions don’t share vocabulary (and since search is just about term matching, branching out into new vocabulary is incredibly important, particularly in the humanities where the jargon isn’t as stable or codified as it is in the sciences). “These scholars know each other,” I point out to the students. “They’ve heard each other at conferences, gone to graduate school together, talked with each other over email and Facebook… As they’re conceiving of their articles, they have all these other people’s work in their heads, so they know to cite so-and-so’s work even though there’s no shared vocabulary. Or else they know that so-and-so talks about the topic using this other vocabulary, so they can search on that vocabulary. Or else they know that so-and-so’s work on a completely different topic is relevant to their own work on this topic and can show you those connections and open up a whole new scholarly conversation to you.” This has usually never occurred undergrads. I encourage students to look at bibliographies as they would look at conversational clumps at a party — seeing who is talking to whom, then seeing what they’re saying and how they interact with each other, then joining a conversation and adding to it while referring back to the people whose points you’re expanding on or countering.

To tap into my own geekiness and the readiness of many Carleton students to revel in an honest-to-goodness intellectual geek out moment, I then pointed out that citation styles themselves, far from being arbitrary and complex hoop courses invented to make student’s hoop-jumping lives difficult, in fact reveal the epistemologies of the disciplines they serve. The styles are jargon, meant to communicate complex ideas in predictable, short, human-readable (everyone laughs) bursts of information. APA, for example, privileges dates and really only needs a primary investigator’s last name. This, speaking in generalities, reveals much about the way that science research is conducted (often a lab run by one or two stable scientists and several more temporary post-docs and research assistants, often working on sequential stages of a complex research question, publishing as they go). Providing last name and date lets readers know very quickly which major research question, and at what point along the timeline of an epistemology in which new research either test or build upon older research. MLA, on the other hand, works well for disciplines that are primarily discursive and subjective rather than sequential and objective.  It privileges peoples names and their words, and leaves dates for later primarily for people who need to know precisely what edition you were using or orient themselves in the much less granular timeline of developments in critical theory.

So, with all this in mind, the professor and I encouraged the students to see their annotated bibliographies as their chance to map out the boundaries of the conversation they’d be entering, selecting key works for theoretical foundations, background information, and the main voices in the conversation their papers will be adding to. The annotations should point out why and how each source functions in the context of their papers. And all of this will help them and their professor see the major landmarks on the emerging landscape of their topic.

* Incidentally, John Bean talks about the four kinds of sources found in bibligraphies in his book Engaging Ideas, adapting Bizup’s ideas published in Rhetoric Review in 2008. I didn’t explicitly build my work off of this at the time, but in the future I’ll work Bizup’s BEAM concept more firmly into my instruction.

Bean, John. 2011. Engaging Ideas. 2nd ed. San Francisco: Jossey-Bass. pp 236-241.

Bizup, Joseph. 2008. “BEAM: A Rhetorical Vocabulary for Teaching Research-Based Writing.” Rhetoric Review 27 (1) (January 4): 72-86.

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A practical guide to the Georgia State eReserves Copyright Case for Librarians

[NOTE: This 2012 ruling has been appealed and then re-ruled. For the latest information, see my post on the 2016 ruling.]

I recently read the final, 350-page ruling in the GSU case and summarized it for key people in the library here, and I thought I’d share my summary for anyone else who wants to know just what happened in that decision and how it applies to libraries running eReserves operations. The full text of the GSU decision is available here (PDF). Please feel free to correct or add to this summary in the comments section. Also, IANAL (I am not a lawyer).

I’ve included the text of the “Fair Use” section of copyright law at the end for those who aren’t familiar. This section, Section 107, lays out the most important exception to the exclusive rights granted to copyright owners and is the basis for most educational copying.

Summary of the case:

On May 11th, Judge Orinda D. Evans of the United States District Court for the Northern District of Georgia handed down her decision in the Georgia State University (GSU) eReserves copyright case that has been in process since April of 2008. The complaint was brought against GSU (the defendant) by Cambridge University Press, Oxford University Press, and Sage Publications, Inc. (the plaintiffs). The plaintiffs originally brought forward 99 individual items that had been placed on eReserves at GSU, but over the course of time this list was revised. The final decision gives item-by-item decisions on 74 documents.

Important facts:

  • All items in this case were excerpts from non-fiction books (monographs and edited volumes), so this decisions doesn’t provide direct precedent for articles placed on eReserve, nor does it provide direct examples of dealing with works of fiction or verse, though it does suggest that those would have to have smaller excerpts used.
  • 74 individual claims of infringement examined in detail in this court decision.
  • 27 claims did not undergo a fair use analysis at all: 18 because the publishers could not prove that they owned the copyright on the material in question (so this does not mean that the uses were Fair or not, just that these publishers couldn’t prove that they were the proper entities to bring suit), and 9 because the excerpts were never accessed by students. This last part was an interesting point that I’ll mention again toward the end of the section on “what we can learn.”
  • Of the remaining 47 claims that did undergo analysis, 42 were ruled to be Fair Use and 5 were ruled to be infringement of the publisher’s copyright. The 5 claims that were ruled infringement were claims 11, 16, 22, 72, and 74.

What we can learn from the decision

The Role of the Classroom Guidelines:
Judge Evans clarified the role of the Classroom Guidelines in important ways, and I for one was very happy to see her analysis here. She emphasized that these guidelines are educational in nature, not law, and they certainly do not represent the upper limit of allowed copying as expressed in the law in Section 107. She rejected the word count limits altogether, and she rejected the injunction against using the same readings from term to term or semester to semester.

The Four Factor Fair Use Test:
The judge emphasized that the only way to determine whether a use is Fair is to weigh all four factors laid out in Section 107. No one factor can trump them all. Here are how the factors played out in her analysis of the 47 items to which she applied them:

1. The purpose and character of the use [in all cases favored the defendants]

  • Judge Evans wrote: “Because the facts of this case so clearly meet the criteria of (1) the preamble to fair use factor one, (2) factor one itself, and because (3) Georgia State is a nonprofit educational institution, factor one strongly favors Defendants” (p 50). So that’s great. Factor One is firmly in our pockets and was never really addressed again.

2. The nature of the copyrighted work [in all cases, because everything in this case was non-fiction, favored the defendants]

  • We still don’t have documented examples of dealing with fiction or verse, which are more creative in the eyes of the law and therefore would be more protected under this factor.
  • We still have no precedent for dealing with articles since all the works in this case were books.

3. The amount and substantiality of the portion taken [requires case-by-case analysis]

  • The key decisions in this area revolved around the phrase “decidedly small.” The judge emphasized that the smaller the amount and substantiality of the excerpt, the more strongly it favors the defendants. The judge decided that a “decidedly small” amount of a book is:
    • For books that don’t have chapters or that have fewer than 10 chapters: 10% of the work (including all copyrightable pages, which includes the index) would constituted a “decidedly small” amount of the book.
    • For books that have 10 or more chapters: 1 chapter constitutes a “decidedly small” amount of the book.
  • There were a couple of instances where larger excerpts were deemed Fair because the market effect was so small, so these limits are again not the maximum limits for copying. The importance, however, is that market effect is difficult to determine without court-ordered documentation from the publishers, so people who want to stay well within the safest zone should probably stick close to these guidelines.

4. The effect of the use upon the potential market [requires case-by-case analysis]

  • The major disappointment for me in this decision is the precedent it sets with regards to the permissions market. Judge Evans determined that the money publishers make on copyright permissions (usually through the Copyright Clearance Center) constitutes a small but important part of their market. She decided, therefore, that where permissions for digital excerpts are conveniently gotten for a reasonable price, people making copies should think very carefully about the four factor test because this would constitute a market effect. This does not mean that they ALWAYS have to pay for permissions. There were several cases where the use was deemed Fair even though permissions were easily obtainable (because the amount was “decidedly small”), but this is still a factor that has to be weighed.
  • It should be noted that many claims in this case failed even though the publishers claimed a market effect. Judge Evans emphasized that all four factors have to be weighed, and in this trial that always came down to weighing amount and substantiality against market effect.

But what about edited volumes?
Part way through the proceedings, the plaintiffs began to argue that chapters within edited volumes each constituted their own copyrighted work, rather than being a percentage of the entire volume. This meant, they argued, that copying that chapter constitutes copying 100% of the copyrighted work. The judge did not rule on this question in a way that sets precedent, so this will be something to watch for in further trials. Instead, she said that she was not inclined to agree, particularly because the publishers use one definition of “work” in the market effect section and another definition of “work” in the amount and substantiality section. In the end, though, she said they had presented this argument too late in the proceedings, so she would not take it into account.

De minimis non curat lex
One interesting point, which may be the subject of future trials or appeals, is that Judge Evans employed the legal maxim of de minimis non curat lex (“The law does not concern itself with trifles”) whenever an excerpt had not actually been used by students. For each excerpt in the eReserves system, she would look at how many times the document had been accessed. If it hadn’t been accessed, she would not perform a fair use analysis because the claim was a “trifle.” She would simply say that the claim of copyright infringement failed in each of those cases.

Burden on Libraries
The plaintiffs claimed that GSU’s eReserves policy contributed to the campus community’s infringement of the publishers’ copyrights. The judge pointed out two important things that libraries with eReserves operations should do:

  • Provide an access controlled eReserves system (as GSU did). This system should be set up such that students log in and can see only those documents for courses in which they are currently enrolled. This access should go away when the course ends.
  • Provide education through its eReserves policy on how much content professors can request to have loaded into the system. In particular, she says that institutions should explain what constitutes a “decidedly small” amount of a work, and what constitutes “market effect.” She acknowledged that market effect is very difficult to determine. She therefore suggests that “the only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available) (p 338). In effect, this makes the amount and substantiality component the main area for faculty to consider, and makes it more important (in the judge’s eyes) that amounts be kept “decidedly small.”

Breakdown of claims:

Claim # Ruling
1 No analysis: de minimis
2 No analysis: de minimis
3 rejected: no proof of copyright ownership
4 No analysis: de minimis
5 No analysis: de minimis
6 No analysis: de minimis
7 No analysis: de minimis
8 Ruled Fair
9 Ruled Fair
10 Ruled Fair
11 Ruled Infringement
12 rejected: no proof of copyright ownership
13 Ruled Fair
14 No analysis: de minimis
15 Ruled Fair
16 Ruled Infringement
17 rejected: no proof of copyright ownership
18 Ruled Fair
19 Ruled Fair
20 Ruled Fair
21 Ruled Fair
22 Ruled Infringement
23 rejected: no proof of copyright ownership
24 Ruled Fair
25 rejected: no proof of copyright ownership
26 Ruled Fair
27 Ruled Fair
28 Ruled Fair
29 Ruled Fair
30 Ruled Fair
31 Ruled Fair
32 Ruled Fair
33 Ruled Fair
34 Ruled Fair
35 No analysis: de minimis
36 Ruled Fair
37 Ruled Fair
38 rejected: no proof of copyright ownership
39 Ruled Fair
40 Ruled Fair
41 Ruled Fair
42 Ruled Fair
43 Ruled Fair
44 rejected: no proof of copyright ownership
45 No analysis: de minimis
46 rejected: no proof of copyright ownership
47 Ruled Fair
48 rejected: no proof of copyright ownership
49 rejected: no proof of copyright ownership
50 rejected: no proof of copyright ownership
51 rejected: no proof of copyright ownership
52 Ruled Fair
53 rejected: no proof of copyright ownership
54 rejected: no proof of copyright ownership
55 Ruled Fair
56 Ruled Fair
57 rejected: no proof of copyright ownership
58 Ruled Fair
59 rejected: no proof of copyright ownership
60 rejected: no proof of copyright ownership
61 Ruled Fair
62 Ruled Fair
63 Ruled Fair
64 Ruled Fair
65 Ruled Fair
66 Ruled Fair
67 Ruled Fair
68 Ruled Fair
69 Ruled Fair
70 rejected: no proof of copyright ownership
71 Ruled Fair
72 Ruled Infringement
73 Ruled Fair
74 Ruled Infringement

GSU eReserves decisions (Excel version of that table)

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The “Fair Use” exception to the exclusive rights of copyright owners to copy and distribute their works.

107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include–

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

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