Here's a somewhat extended quote from the Motion that quotes the original complaint:
"At other points in the Complaint, without addressing the text of the records use policy, Plaintiffs characterize the policy as placing broad restriction on a library's use of its own records. ([Complaint] paras. 34-36) However, these conclusory allegations are belied by the actual terms of the records use policy pled above.. For example, Plaintiffs claim that 'a member library may not transfer or share records of its own holdings with commercial firms' ([complaint] para 35), but the records use policy states no such thing. Throughout these allegations, moreover, Plaintiffs confuse and obscure the terms 'OCLC records' and 'library records.' In reality, the situation is simple: OCLC does not prohibit a library from sharing its original cataloging records with whomever it pleases; it does, consistent with the fact that the WorldCat database is copyright, claim a legal right to the unique identifier information used to link and make usable records in WorldCat." (Motion, pp 7-8)
"Again, at most, the Complaint pleads only that libraries cannot share OCLC's records, not that they cannot share the records they themselves created." (Motion, p. 14)This is a very interesting set of statements. First, it plays with the ambiguity in talking about "library records," denying that libraries cannot convey records of their holdings, as stated in the Complaint, then stating that they can share their original cataloging records, which is not what most in the library world would consider equivalent to "library holdings." What it comes down to is the ownership of the records in the library catalogs that represent the holdings of the library. By "the holdings of the library" I understand not just some holdings, but either all of the holdings or some useful set of those holdings. The set of records that were originally cataloged by the library is a somewhat random set, and not useful as "library holdings." OCLC claims ownership in all records in a library's catalog that were not created as original cataloging by that library. Although this is a distinction it is not a distinction that relates to any particular functionality or useful library projects relating to their holdings. It's useless nonsense, is what it is, nitpicky, and proof that OCLC was boxed into a corner as it tried to claim ownership over the millions of records created by libraries around the world.
OCLC also states in the second quote above that those records in the library data are "OCLC's records" and are not records that the libraries created. Here, "created" is a key verb. Any library that has done significant modification and upgrading to a record can probably claim at least an amount of co-creation with other libraries. The claim that those records belong to OCLC is an insult to the libraries that have put so much effort into the shared pool of bibliographic data. Of course, OCLC would counter that the libraries and OCLC are one and the same. The unilateral actions of OCLC around the record use policy definitively shattered that view.
Equally interesting is the claim of copyright on the database, a claim that has not been challenged and that might not survive a challenge. A database of bibliographic data may just be seen as a compilation of facts, essentially sweat of the brow rather than a creative output. Add to that the fact that much of the sweat was not OCLC's but was on the part of thousands of libraries, and the copyright claim looks thin. Ditto the claim to the OCLC number, which is purely a sequential number assigned to records as they enter the system. The claim that the OCLC identifier makes OCLC records usable is not defensible, IMO, in that every database assigns numbers to things as part of the mechanical database management process. There's nothing new or creative about the fact that OCLC records have OCLC database numbers.
Remember, though, that these statements are not meant for you and me; they are addressed to a court that may have very little knowledge in these matters. Obfuscation of the facts is undoubtedly part of the trial process, and on the part of all parties involved. Unfortunately, OCLC's motion goes beyond obfuscation -- it gets nasty.
Sarcasm and Nastiness
I've only read the legal documents for a few cases that I'm particularly interested in, so my experience here is limited. However, I would assume that a court case would best be won on cleverness, wily strategies and the ability to out-wit ones' opponent. In this as in other professional and public endeavors, I would expect the participants to affect a tone of detached politeness, even while skewering their rival. The OCLC motion plummets into sarcasm and nastiness. Here are some quotes:
"...Plaintiffs have thrown a plethora of allegations of OCLC's purportedly anticompetitive actions into the Complain to see if any stick..." (Motion, pp. 1-2)
"While OCLC denies that either of these libraries has suffered as the result of anything other than purchasing the Plaintiff's inferior cataloging software..." (Motion, p. 17)
"... vigorous competition against a company offering less expensive, but inferior products, is perfectly lawful." (Motion, p. 1)
"Nevertheless, what is sauce for the goose is sauce for the gander -- having pled a fiction that undercuts the existence of any claims they can pursue, Plaintiffs cannot claim to have been injured..." (Motion, p. 4, footnote)
"Nothing in the antitrust laws requires OCLC to subsidize SkyRiver's inferior product by setting its pricing for registering holdings into WorldCat as low as possible." (Motion, p. 28)I find these statements to be embarrassingly unprofessional in nature, although for all I know this is the norm in legal arguments.
I suppose that one of the main skills for legal argumentation is the ability to present "facts" in ways that benefit your client, regardless of the facts. (If I were a judge and had to listen to this stuff, I'm sure I'd be driven to homicide.) Here are some examples from the motion to dismiss:
1. The named libraries, Michigan State and Cal State Long Beach, were not harmed by OCLC, they simply declined to purchase OCLC's record upload service. This is cited as proof that they were not coerced into making a purchase (which appears to be one of the antitrust offenses). (p. 29) There is no mention that the libraries could not afford the price that OCLC offered, that the price changed without warning, etc.
2. WorldCat Local is not a competitor to ILS systems because it exists in addition to the ILS system. The Motion of course completely fails to connect WC Local, its attempt to limit use of the bibliographic data, and the upcoming "in the cloud" library systems platform. Are they worried that it might actually look like improper use of the WorldCat database?
3. SkyRiver does have bibliographic records, so OCLC cannot be accused of having a monopoly on bibliographic records. (As if any bunch of bibliographic records will do.) Elsewhere in the document they boast of having the largest bibliographic database. Are we back to the Goose and the Gander?
These are just a few of the topics in the Motion, and just the ones that I found most interesting. They may not even be the most relevant topics relating to the lawsuit. I suggest that you read the Motion and other documents for yourself.