I will comment on some interesting text and subtext of the motion. Since this will get long, here is quick summary of what follows:
- The motion states that SkyRiver has so far offered little proof of harm due to OCLC's business practices.
- The motion may play on the court's ignorance of the library world and of OCLC's definitions.
- OCLC makes some interesting claims to rights.
- The motion makes claims that twist the words of SkyRiver's complaint.
- The motion contains some unfortunate use of sarcasm and nastiness.
- The motion undermines some previous OCLC claims as to the force of the Record Use policy.
Little Proof
The motion claims that the SkyRiver complaint contains few hard facts that could be used to back up the anti-trust claims. (Although I have no idea how detailed such a complaint is supposed to be.) It doesn't explain the library market and OCLC's role in it. What I find particularly lacking is that there is no comparison of pricing for record uploads between the libraries that moved to SkyRiver for cataloging and other libraries that upload records to OCLC. (According to the 2009 annual report, only 12% of records added to WorldCat were added via cataloging on OCLC; the rest were batch loaded.)
Ignorance and Definitions
OCLC plays heavily on the confusion between WorldCat, the database, and the records in libraries' catalogs. This is not an easy concept to grasp, and it is not explained well in the SkyRiver complaint. Wherever SkyRiver's complaint refers to "library records" OCLC counters using "WorldCat" in its place. It makes a huge difference to be talking about the records in a library's catalog vs. the entire WorldCat database. OCLC claims that SkyRiver is demanding that OCLC make all of WorldCat available for free to competitors. What is actually said is:
"Library records should be freely and openly available for use and re-use either in the public domain or by reasonable means of access for all, including for-profit library services firms." (Complaint, para. 76)
But OCLC re-words this in its response as:
"... (a) library records should be free, regardless of OCLC's inestment in aggregating, normalizing, enhancing, maintaing(sic), and delivering services based on them..." (Motion, p. 10)OCLC also says:
"Plaintiffs pled, at most, only that libraries cannot share OCLC records, not that they are prevented from sharing records they created." (Motion, p. 21)What is clear here, as it is throughout the motion document, is that SkyRiver is talking about the records that are in library catalogs, and OCLC is talking about "OCLC" or "WorldCat" records. By referring to the records in library catalogs as "OCLC" records, OCLC thus claims ownership to those records. In the former meaning, the libraries are prevented from making use of the records in their catalogs as they wish; in the latter, OCLC is the owner of a database and claims are being made against that database. Unless these definitions are cleared up, the two parties are just talking past each other, and no member of the court is going to make sense of it all. That, of course, would probably be to OCLC's advantage.
Record Use Policy
The original complaint cites the OCLC record use policy as a means by which OCLC maintains
"strict control over its members' access and use of the WorldCat database...". (Complaint, para. 33)OCLC's motion first complains that SkyRiver did not attach a copy of the Policy with its original filing (but did so to their response to the Motion to Transfer). This is irrelevant to the case, I believe, and therefore is a bit of sniping at SkyRiver's lawyers, hinting that they aren't doing a good job. Anyway, here's how OCLC replies to that:
"The nature of these documents is not pled: it is not claimed that these documents are anything other than 'guidelines' OCLC publishes or that OCLC has ever used these documents to prevent a library from providing its catalog records to Plaintiffs or any other entity." (Motion, p. 7)There's more, but let's first examine this statement. During the big broo-ha-ha about the policy, Karen Calhoun published "Notes on OCLC's updated Record Use Policy" on the OCLC blog, and stated:
"The updated policy is a legal document. Being a player on the Web, working on behalf of libraries, requires that the policy be a legal document."That is of course the opposite of what is said in the motion.
(See comment below by Jennifer Younger: "The new 2010 policy is correctly characterized in OCLC's Motion to Dismiss as a code of good practice to guide members' choices about how they share their copies of WorldCat records.")
What is sad, however, is the statement, true as far as I know, that OCLC has never used these documents to prevent libraries from sharing their records. It hasn't had to, because the mere threat has been enough to prevent libraries from acting. The libraries that have released their records have done so unscathed, but they are few. There are of course two ways to interpret this: libraries are afraid to release their records, fearing retribution, or that libraries agree with OCLC's argument that WorldCat would be endangered should library records be openly shared.
I'll pause here and take up again shortly.
15 comments:
Very interesting...since all of your comments are completely one-sided, its's difficult to find trust in them.
Anon -- Yes, these are my opinions, and I am quite up front about that. You have no reason to trust me, and I suggest that you read the documents for yourself.
I have - and makes your comments even more biased :) You seem to state your opinions as facts, rather than opinions. For ex: Skyriver did quite a good job explaining library records and WorldCat in their conplaint, para 6 and 13. Do you really think the courts won;t understand this concept? They addressed far more complicated isues that bib records.
I have not carefully studied either document, but one thing I found curious from my cursory reading of OCLC's response was a sentence saying "even if what Skyriver says is true, what we did was not illegal" or something to that effect. I think this was in response to some of the more scandalous charges about greasing the palms of university officials etc. That seems like a strange way to respond.
Anon - that is explained here:
http://www.oclc.org/us/en/news/releases/2010/201060.htm
and seems to have something to do with antitrust law.
For ensuring the record is straight, I would like to comment on your attemptto show inconsistency in the way the OCLC Motion to Dismiss characterizes the record use policy (as a set of guidelines) by comparing it to what Karen Calhoun wrote in her blog post of November 4, 2008. The quote in Karen Calhoun's Nov 2008 blog post referred to the proposed policy presented to OCLC members in late Octoboer 2008. Calhoun's quote did not refer to the "WorldCat Rights and Responsibilities for the OCLC Cooperative" put forward in 2010.
Indeed, as was stated then, the 2008 proposed policy was a legal document. However, OCLC members did not like it and as a result, OCLC officially withdrew that proposed policy and which was then never implemented. Instead, OCLC appointed a group of members to write a new policy, which we did, and "WorldCat Rights and Responsibilities for the OCLC Cooperative" was implemented August 1, 2010. The new
policy is very different from the one proposed in 2008 and withdrawn in early 2009 before it was ever implemented. The new 2010 policy is correctly characterized in OCLC's Motion to Dismiss as a code of good practice to guide members' choices about how they share
their copies of WorldCat records. Quoting a comment made in 2008 on a
very different and never implemented policy, as if that comment applied equally to the new 2010 policy, is incorrect and misleading.
Jennifer Younger, co-chair, OCLC Record Use Policy Council
Thanks, Jennifer. I obviously didn't realize that the "contractness" of the document had been withdrawn. The policy itself is silent on that issue and the title changed from the earlier "Guidelines" to "Rights and Responsibilities." Do you know of any place where the "legal" nature of the policy is explained?
one more "oops, I didn't know that" to add to the list of erroneous statements, Karen.
Dave, since you are interested in being helpful... did you know that? and if so, how did you know? Are you in an OCLC member institution? I thought that I had followed the policy process pretty closely, but as someone who is not an OCLC member I never know if there are member communications I am missing. I have looked back over the policy documents and cannot find any that make the statement that Jennifer Younger reports in her comment. I do find in the final report of the OCLC Review Board on Principles of Shared Data Creation and Stewardship this statement:
"The Review Board agrees that some uses of WorldCat are undesirable, inappropriate, or unacceptable and that strategies for preventing, discouraging, or minimizing such uses, or limiting their impact, may require a legal underpinning. At the same time, in an organization that is a membership cooperative, a policy must be firmly grounded in the values and interests of the cooperative as a whole." (p.7)
Is there some statement elsewhere that indicates that the policy is not legally binding? Note that this isn't mentioned in the press release announcing the new policy [1] or either of the LJ articles about the policy [2] [3]. The press release does quote Jennifer as saying:
"We decided to emphasize a code of good practice for members of the cooperative, based on shared values, trust and reciprocity," said Jennifer Younger, Co-Chair of the Record Use Policy Council, President-Elect, OCLC Global Council and Chair, Board of Directors, Catholic Research Resources Alliance. "The focus of the new policy is on member rights and responsibilities—instead of data ownership issues, detailed provisions or restrictions—with the general aim of fostering innovation in our ever-changing information landscape."
Is that to be construed as meaning that the policy is not contractual in nature? Given that earlier statements had been made that it was to be a legal document, is this enough to let everyone know that the final version is not?
I do wonder what members think the policy means in terms of their relationship with OCLC -- do they consider it a contract? Do they think that there would be consequences for violating the policy? (e.g. losing access to OCLC)
Can you point me to the document that describes the policy as "guidelines" but not legally binding?
[1] http://www.oclc.org/news/releases/2010/201032.htm
[2] http://www.libraryjournal.com/article/CA6725522.html
[3] http://www.libraryjournal.com/article/CA6725522.html
Karen,
ONe place to find more thoughts on the nature of "WorldCat Rights and REsponsibilities for the OCLC Cooperative" is in the community forum discussion at http://www.oclc.org/uk/en/worldcat/recorduse/policy/forum/forum.pdf . There are several posts and replies from the Record Use POlicy Committee that might be helpful. Overall, we (the RUPC) deliberately took an approach to teh policy that is based not on the ownership of records or the specifics of what members can or cannot do, but instead, we built on the willingness of OCLC members to commit to a code of good practice that will sustain the shared resource- WorldCat - over time. Our approach vests rights and responsibilities for the use of WorldCat in OCLC members and asks members to use their good judgment in exercising these rights and responsibilities in the context of suggested good practices. Jennifer Younger
Jennifer, there is a question by someone named Adrian that is similar to the one I am asking. He asked:
"Are there any sanction mechanisms implemented in the policy? Which consequences would a library face which violates the policy as it is interpreted by the Record Use Policy Concil? It won't be legal consequences, I believe, because the policy isn't grounded on copyright law as you confirmed. So it only can be consequences internal to OCLC. Are there any statements about the process that follows a violation of the code of conduct? Do sanction mechanisms exist? Or do you just count on the OCLC members that they'll follow the code of conduct in the way the Record Use Policy Council interprets it and will ask for permission if they intend to use the records in a way not covered by the policy?"
The group replied with:
"Dear Adrian, Thanks for your comments. We will take them into account as we look again at Section 5 of the draft policy, which outlines the process that follows a violation of the code of conduct. It reads "OCLC member use of data extracted from the WorldCat database is carried out in a diverse and rapidly-changing environment. It is, therefore, impossible to anticipate all of the conceivable uses to which members might want or need to put WorldCat data. OCLC members are encouraged to discuss with OCLC any uses that do not appear to be covered by this policy. If a particular use is determined to not be covered, OCLC and the member will seek a mutually agreeable resolution of the matter. If, after six months, no such resolution has been reached, OCLC will refer the matter to the OCLC Global Council for prompt advice on how to proceed." --Record Use Policy Council
But I don't think this answers the question. To begin with, it doesn't address a breach of the guidelines, only a discussion between OCLC and a library about a proposed future use.
The guidelines either are or are not binding. There either are or are not sanctions.
OCLC's claim in the Motion is:
"it is not claimed that these documents are anything other than 'guidelines' OCLC publishes or that OCLC has ever used these documents to prevent a library from providing its catalog records to Plaintiffs or any other entity."
My guess, and I would love to hear from actual OCLC members, is that libraries contemplating releasing their data assume that something bad could be done to a library that violates the guidelines. If that's the case, then the document does prevent libraries from releasing their data, in the same way that laws cause people to behave in a certain manner. The experience of Michigan State and the unanticipated increase in costs to upload records after they moved their cataloging to SkyRiver unfortunately serves to instill fear. Fear of the unknown, primarily. Shouldn't members know the consequences of their actions, so that they can make a reasoned choice?
Karen, as Jennifer stated, you again reference language and comments made about the draft policy. The final policy is in place. Please read it and you will answer your own question about consequesnces.
Robin, I was referencing the document Jennifer referred me to and that she recommended I read. The quotes are from that document, which she suggested would answer the question. I don't think it does. If you find another document that does answer the question, please pass along the link. The final policy text does not appear to me to provide the answer. BTW, the final policy text has the same wording as in the document Jennifer recommended, and that I quoted above:
"5. Addressing Disputed Use of WorldCat Data by Members
OCLC member use of data extracted from the WorldCat database is carried out in a diverse and rapidly-changing environment. It is, therefore, impossible to anticipate all of the conceivable uses to which members might want or need to put WorldCat data. OCLC members are encouraged to discuss with OCLC any uses that do not appear to be covered by this policy. If a particular use is determined to not be covered, OCLC and the member will seek a mutually agreeable resolution of the matter. If either party believes that timely resolution cannot be reached, then the matter will follow resolution and/or arbitration procedures to be determined by the Global Council and the Board of Trustees."
http://www.oclc.org/worldcat/recorduse/policy/default.htm#5
I refer to this discussion on my blog because the post was too long to leave it here as a comment, see http://www.uebertext.org/2011/01/oclc-membership-in-search-of-criterias.html.
The most relevant part for this discussion reads:
"It was me that asked the questions under the name "Adrian" in the OCLC community forum concerning member libraries opening up their data under a public domain licence. And I definitely agree with Karen saying that the Record Use Policy Committee or any other body representing OCLC has not (yet?) answered my last question in this forum from April 16th 2010. The Committee rather postponed an answer and said that my question would be adressed by a reworking of section 5 of the policy. Albeit, since then this section hasn't changed a bit."
Thanks, Adrian, for your cogent post about trying to determine who the OCLC member libraries are. (Do go read Adrian's post - excellent.) It makes me wonder if there aren't librarians who do not know if their institution is a member (and thus subject to the policy).
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