Non-rival is non-relevant

I’m glad that Elisabeth Jones wrote to our tip page about her post–Fighting for non-rival pudding–because I’ve been wanting to spout off about non-rivalness for a while now.

Anytime you hear someone talk about intellectual property you are going to wind up hearing the phrase “non-rival.” The idea is that information or knowledge is a non-rival good. What this means is that when one person consumes information, it does not prevent another person from consuming it. So information or knowledge is not like land or pudding, which are “used up” when other people consume them. Ok, fine.

But from this idea many people quickly get to conclusions like: information just wants to be free; intellectual property is evil; DRM is the devil; and the Kindle is a giant threat to intellectual freedom. Maybe all those things are true, but I don’t think you can get there from the claim that information is non-rival.

First, I’m not even sure that information is non-rival. What about a juicy piece of gossip? The more people hear about it, the less juicy it becomes, the more it is “used up.” Or what about the secret to a magic trick? Or an insider stock tip? Or a trade secret? Or any information that gives someone a competitive advantage?

But even assuming that information is non-rival, nothing follows from this about intellectual property rights. Information and knowledge should be widely distributed because everyone in society will be better off (not because they are non-rival). But that doesn’t mean information has no value, or that the creators of information can’t charge for it, or put restrictions on who uses it and what they can do with it (within reason).

And even assuming that information is non-rival, that does not mean that books as containers of information are non-rival. In fact books are not non-rival in all respects, as anyone who goes to a library and finds the book they want “checked out” knows. If someone is using a book, someone else cannot simultaneously use it, hence it is not non-rival. Oh unless it’s an electronic book, with the right kind of DRM set up.

In her post, Jones jumps from the idea that information is non-rival to the idea that the Amazon Kindle will do “monumental and egregious harm…to intellectual freedom and the maintenance of an informed populace” because a person cannot take their Kindle book content to a used bookstore or donate it to a library like one could with a physical book. Jones claims that books are like bottomless cups of pudding because others can consume their contents hundreds or thousands more times.

This is going too far. It’s an open question whether Kindle will lead to a more or less informed populace. Kindle books are less expensive (after you shell out for the device) than physical books. Kindle makes it easier to carry more books at one time on a train or a plane. Perhaps for these reasons, Kindle will lead to a more informed populace, not less. As for not being able to sell or give away Kindle books, that is a disadvantage, but if people could give away digital books there’s a good argument that that activity would undermine the whole market because sharing networks would be set up. We may like that, but I don’t think there’s an inherent right to it simply because information is non-rival or because information is a public good. Physical books are not, as Jones claims, bottomless cups of pudding. Eventually they wear out, especially if the first owner treats them roughly or writes in them. The more they are used, the more they are used up. As far as I know there is nothing stopping someone from loading up a Kindle and selling it or giving it away, or even lending it out, as some libraries have done.

The debate of ownership vs. access for libraries is not a simple one, and it’s quite a stretch to blame the current economic meltdown on access over ownership. Intellectual goods may be non-rival, but physical books are not. Something follows from the fact that information is non-rival, but I’m not sure what and I’m not sure it’s interesting. Whatever it is I don’t think it has anything to do with intellectual property rights, the debate between ownership versus access in libraries, or if the Kindle is a boon or threat to intellectual culture.

Empowering Our Users With Fair Use

Editor’s Note: Working at an academic institution in Philadelphia had its advantages recently for providing proximity to a significant event – the formal release of the Code of Best Practices in Fair Use for Media Literacy Education. My colleague Kristina De Voe, Reference Librarian for English & Communications at Temple University, attended the event. Here she shares some observations and thoughts from the event, along with some useful links. Many thanks to Kristina for contributing this guest post.

On November 11, 2008 I attended the release event for the much anticipated Code of Best Practices in Fair Use for Media Literacy Education, a succinct, easy-to-understand document outlining the concepts and techniques for interpreting the copyright doctrine of fair use. Fittingly taking place at Philadelphia’s National Constitution Center and coordinated by The Center for Social Media, The Program on Information Justice and Intellectual Property, and Temple University’s Media Education Lab, the event was attended by fair use stakeholders: educators, students, copyright lawyers, and librarians.

An archived stream of the event is available, but as media literacy maven Renee Hobbs and other panelists spoke on the significance of the Code in terms of both teaching and student learning, I was struck by their sheer call to action. Here is a document that we as librarians can use as a teaching and learning tool with our faculty, our students, and one another.

Whether helping faculty design amazing curricula or helping students with research projects, promoting a stronger culture of fair use within our institutions allows us to help empower our users in accessing and utilizing media rich resources – available from our libraries or elsewhere. It is no surprise to me that comments about the Code from librarians were celebratory (there were cries of “Hallelujah” and even “This rocked my word!”) because too often, I think, we become bogged down by the image of librarians as gatekeepers of information.

This code offers librarians a new role as well as a fresh way for integrating information literacy concepts into practice. For example, the organizers of the event created a corresponding wiki, “Unlocking Copyright Confusion,” filling it with curriculum materials for teaching about fair use, in addition to a space for continued dialogue. Joining in or simply starting a conversation about fair use with educators and fellow librarians just may lead to unexpected discoveries.

Georgia State Strikes Back

If the university presses that sued Georgia State over the use of electronic readings offered their students through the campus CMS, department pages, and library e-reserves were looking for a “whoops” and the kind of statement that Cornell (and other schools) have adopted – they guessed wrong.

At issue: well, it depends on how you frame it. University presses think Georgia State violated their rights by not “seeking permission” (copyright lingo for “paying”) to use digital copies of their publications. They want the university to adopt practices that are at least closer to their more limited definition of fair use. Georgia State believes they were furthering students’ education in a way that is fair use. And in papers filed on Tuesday they’ve just explained their side of it to the court.

Andrea Foster’s article in the Chron (the only coverage of this development that I’ve seen so far) points out that Georgia State is making another argument – as a state institution they’re immune from prosecution.

Without having a copy of the filing, it’s hard to read the tea leaves – but this could be precedent-setting in ways the previous settlements were not. How interesting that this document was filed just before ALA is having its annual meeting in Annaheim and at the very same time the American Association of University Presses is meeting in Toronto. I’d love to have two flies on those conference center walls with Twitter accounts.

(The AAUP has a statement of support for the press’s suit posted on their website, but it’s from last April. I tried to see if they have updates on their blog, but guess what – it’s closed to non-members. I also couldn’t find a statement from Georgia State’s press office at their Website.)

Do you know more about this court filing? Do tell.

Lawsuit on “Electronic Course Packs”

This story in The New York Times is alarming – does anyone know more about it? Though libraries, CMS’s, and e-reserves are not mentioned, it appears to have widespread implications.

Three prominent academic publishers are suing Georgia State University, contending that the school is violating copyright laws by providing course reading material to students in digital format without seeking permission from the publishers or paying licensing fees.

In a complaint filed Tuesday in United States District Court in Atlanta, the publishers — Cambridge University Press, Oxford University Press and Sage Publications — sued four university officials, asserting “systematic, widespread and unauthorized copying and distribution of a vast amount of copyrighted works” by Georgia State, which the university distributes through its Web site.

The lawsuit, which may be the first of its kind, raises questions about digital rights, which are confronting many media companies, but also about core issues like the future of the business model for academic publishers.

If anyone has the inside scoop, please share it with us.

Update: The AJC writes a really confusing headline but adds some information about the library angle; Inside Higher Ed writes journalistic circles around the Gray Lady. The complaint is here. The Chron comments on the commentary and links to a fascinating take from Kevin Smith that argues libraries and faculty aren’t free-riders on publishers, it’s the other way around: publishers get free content from academia, then wants to be paid all over again when it’s used for courses.

Free Culture Clash

Libraries think it makes sense to digitize theses and dissertations and have them web-searchable rather than have to rely on UMI publishing them. Having a few print copies on the shelf means hardly anyone will find that scholarship, and why would anyone go to the trouble to write all that if they don’t want it read?

Well, to get a credential, for one, and for another, to prepare for a life that involves publishing books – books that are a marketable commodity, not given away for free.

Several universities have fallen afoul of graduate students who fear their first book – the one that gets them tenure – will be unpublishable if the dissertation its based on is open access. The University of Iowa is now finding itself in the middle of an unanticipated firestorm when they decided deposited electronic theses would be open access and, eventually, print theses would be, too. According to the Chron:

At the center of the conflict is a routine form that students and their faculty advisers sign for depositing students’ theses with the Graduate College. Language added to the form this semester says that the University of Iowa Library will scan hard-copy theses and “make them open-access documents,” which it defines as freely available over the Internet and retrievable “via search engines such as Google.” It is not clear who authorized that clause.

Students can request to have Internet publishing delayed for two years, the form states, but it adds that the default assumption is that students want their theses disseminated online. All graduate students must sign the form, due in early April, in order to graduate.

To some this is a Trojan horse – a university taking control of students’ intellectual property without discussion; for others it’s outright theft. For many students in the famed Iowa Writers’ Workshop it’s an inexplicable lapse of common sense. After all, these are students who are in school to learn how to write publishable work. They see this action as a high-handed move to take away their creative work and make it unpublishable.

The language in the “first deposit checklist” states the library plans to make electronic deposits open access and to digitize print ones, rather than have them published via UMI. The library has tried to clarify its role in this issue, as reported in EarthGoat.

But clearly, there are some very sticky issues here that open access supporters (including many critics of this new policy) need to untangle.

Addendum: Peter Suber has, as usual, words of wisdom. The only disagreement I would have with him is that two years’ embargo is okay for literary works. It takes a year, at a minimum, to publish a book the traditional way, and trade publishers would not be happy with any open access that wasn’t under their control, ever. Backlist is gold to them, and a lot of books retain their market value even when they’re years old. (I do find myself wondering whether UMI publication has ever interfered with signing a contract for an MFA-originated project – but that’s a rabbit hole we don’t need to go down.)

UPDATE: The university (not surprisingly) said whoops and the language on the policy was changed (and that link will no longer work). Chances are, this could have been resolved in-house without any friction, but because there was a deadline involved, the issue didn’t seem resolvable quickly, and word spread across the internet much faster, it became a bit of a public relations disaster. If nothing else, it suggest rolling out any new open access initiative needs to be an opportunity to discuss what open access is all about.