Author Archives: Brianna Schofield

Notice and Takedown and Academic Digital Libraries

Posted August 8, 2017
photo of academic library

photo by Redd Angelo | CC0

Prior to joining Authors Alliance as Executive Director earlier this year, Brianna Schofield was the Clinical Teaching Fellow at UC Berkeley Law’s Samuelson Clinic, where she co-authored an article with Jennifer M. Urban, Clinical Professor of Law and Director of the Samuelson Clinic at UC Berkeley School of Law, examining academic libraries’ experiences with notice and takedown. Takedown and Today’s Academic Digital Library has now been published by Ohio State University Moritz College of Law’s I/S Journal of Law and Policy. We share a summary of the article below, and invite readers who are interested in learning more to access the full article here.

In recent years, academic libraries and archives have increasingly used digital means to preserve materials and provide access to users, allowing them to serve more diverse, and much more far-flung, populations. For example, libraries and archives are increasingly digitizing collections with unique or rare material that otherwise has limited circulation in order to improve long-term preservation and expand access to cultural heritage. The growth of online scholarship repositories and sharing sites, where academic authors post papers for wide access, is another central development. The evolution and the dissemination of academic works from print collections to open digital forms is widely heralded as increasing access to academic knowledge and fueling research.

Academic libraries have emerged as key players in the move to open access and are rapidly developing platforms that provide digital access to scholarship. As libraries and archives increasingly move into the online open access space, they are thrust more directly into debates over the Digital Millennium Copyright Act (DMCA) section 512 notice and takedown regime than they have been in the past. Section 512’s safe harbor from copyright liability is aimed at online services that host material contributed by others; however, libraries did not often host material posted by others and were therefore unlikely to be eligible for this protection. Newer institutional open-access repositories, on the other hand, may hold many works placed there by third parties, usually authors. These author-directed postings to institutional repositories may put academic libraries into the role of host, thus bringing them under the aegis of the formal notice and takedown system created by the DMCA.

Using survey questions and interviews, Schofield and Urban examined academic libraries’ interactions with both DMCA and non-DMCA takedown notices. They found that academic libraries most commonly receive non-DMCA takedown requests that are based on non-copyright issues (such as privacy) or that target materials the library itself placed online. In general, libraries have well-developed norms and practices in place to manage these types of requests to remove material.

They also found, however, that formal DMCA notices directed to libraries have historically been rare, but that this may be changing as open-access repositories hosted by libraries grow. Library respondents worried that an increase in DMCA takedown requests could result in valuable scholarship being removed from online repositories, thus limiting libraries’ ability to fulfill their missions to preserve and disseminate knowledge. In tracing the recent experience of academic libraries that have received DMCA takedown notices targeting materials in open access repositories, Schofield and Urban found that libraries have not yet developed norms and practices for addressing these requests.

To help libraries effectively manage increased takedown requests while maintaining publishers’ ability to monitor content made available in online repositories, Schofield and Urban recommend that:

  • 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 third-party 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 takedown.

For more information about Schofield and Urban’s findings and recommendations, we invite you to read Takedown and Today’s Academic Digital Library.

LSU v Elsevier – Paying Twice (or More) for Scholarship?

Posted May 4, 2017

Post by David Hansen, Duke Libraries’ Director of Copyright of Scholarly Communication and a founding member of Authors Alliance. We are grateful for David’s permission to reprint his commentary on the recent LSU v. Elsevier lawsuit. This piece was originally posted to the Duke University Libraries’ Scholarly Communications blog.

When discussing the cost of library collection purchases, I sometimes try to make the point that universities are really paying for scholarly work twice–once by paying faculty salaries to research and write, and a second time when the library purchases those writings back from publishers.

After reading the complaint filed in the recent LSU v. Elsevier lawsuit, I wonder if we’re sometimes paying three or maybe four times. The lawsuit, apparently filed back in February but only just yesterday publicly reported, is based on a breach of contract claim. LSU alleges that Elsevier has shut off access to the LSU veterinary school even though Elsevier’s contract with LSU promises access to the whole LSU campus, and specifically includes access to the IP ranges representing the veterinary school.

LSU v. Elsevier

Krista Cox at ARL has written an excellent backgrounder on the lawsuit. Among the materials she links to is the complaint, which includes as Exhibit B this letter from LSU’s lawyers to Elsevier outlining LSU’s legal arguments.

The basics are that Elsevier had been selling LSU access to the same content through two different contracts – once through a contract with the library that covers the whole campus, and a second time through a contract specifically for the LSU veterinary school to provide access to just that unit. LSU, not wanting to pay twice for the same content, let the veterinary school contract expire. Veterinary school users then relied on access licensed by LSU Libraries, which was provided for under the main library contract with Elsevier that purported to cover the whole campus and that specifically identified IP ranges associated with the veterinary users. In response, Elsevier shut off access to the veterinary school IP ranges and insisted that LSU pay more for access for those users. After some failed negotiation, LSU filed the lawsuit.

In terms of legal issues, this looks like a straightforward breach of contract claim. In fact, I’m surprised that Elsevier’s lawyers let the dispute get to this point. Unless there is significant information not included in the complaint, I find it hard to put together a good defense.  The contract is clear about access to the campus, including the IP range representing the veterinary school. It is also clear that the contract document was the “entire agreement” and not created on the condition that some other deal (e.g., the prior veterinary school-Elsevier contract) remain in place. There isn’t a lot of complicated legal analysis here—Elsevier promised to provide access, and now it is going back on that promise in an attempt to extract more money from LSU.

What this case means for the rest of us

It’s behavior like this that gives Elsevier a negative reputation among those who purchase content from the company. I don’t think many among us expect Elsevier to roll over in negotiations,  but from what I can tell in this case the publisher, in my opinion, was unfair and coercive in its approach. It leveraged its significant market power to try to push LSU into purchasing access again that it has already paid for once before. Elsevier knows that no one else can provide access to all these titles, so what is LSU to do?

Beyond the aggressive negotiation tactics, what also worries me about this suit is the prospect that, like LSU, others of us work with schools, departments, projects, etc. that have been solicited by publishers such as Elsevier to purchase access that another entity on campus has already legitimately licensed for the whole university. In a large, decentralized organization like a major research university, there is bound to be some duplicative purchasing. If there are duplications and universities recognize and make corrections to eliminate them, will we too be subject to the same negotiation strategy? Would we be bound to continue paying twice? Would access for medical schools, veterinary schools, nursing schools, or law schools, be held hostage as well?