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.
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.