Tuesday, December 14, 2010

OCLC Motion to Dismiss, Pt II

Continuing on...


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.

Separate Realities

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.


Jonathan Rochkind said...

Is there actually text in their response about the OCLC number being something they own, or did you just add that in as a pre-emptive response?

While much of copyright as it relates to this sort of stuff is grey area that could go either way in court -- the OCLC number thing is something I'd bet the farm on a court saying is NOT copyrightable, because it is SO VERY analagous to the page numbers on published court decisions that the supreme court said were not copyrightable in West v. Mead.

As far as the 'database as a whole' -- it IS possible to have copyright on a collection of facts that individually are not copyrightable. If you (the entity claiming to hold the copyright) applied some kind of human judgement in which 'facts' are in your collection and which aren't. Then you have copyright only on THAT particular assemblage which is your collection, not on the individual 'facts'. Does OCLC actually exersize any kind of human judgement? I kind of think not, but maybe. And it gets more confusing when their 'collection' is constantly changing, not the situation the copyright laws were created in. I _suspect_ they'd lose there too, but they might not.

But I'd be SHOCKED if they won in court on any claim that page numbers are copyrightable. If they're actually making that claim in a legal brief -- either they're counting on the judge not knowing the law, or I question their legal counsel's knowledge of the law.

Anonymous said...

It's apples and oranges comparing a page number to a complete record identifier. The more appropriate comparison is a leagal citation e.g. the "item" to the OCLC number, and the citation is copyrightable.

Karen Coyle said...

Jonathan, I quoted the only mention of the OCLC number in that long quote. I haven't looked to see if they have mentioned it in other documents. I, too, wouldn't expect it to be copyrightable, but I've been surprised before by copyright law decisions. It's always more complex than it seems on the surface.

Anon, I believe that the legal citations are more like a classification system than simple incremental numbers. But it's hard to do any online searches with the word "copyright" in them because it tends to pull up every document with a copyright notice. If you can provide the case info, that would be great, thanks.

Brenton said...

I agree sarcasm is a bit much. SR is not without guilt - read SR's original complaint. one ex: OCLC induces libraries to become members of a purported cooperative. (Two insults in one sentence. What an insult to libraries).

Anonymous said...

Its not a classification system, the citatin points the user to the appropriate book and page number, that's it. "Simple incremental numbers" - if only it was that simple.

Brenton said...

Humorous discussion, and regardless who's right, you're all missing the point. SR has not built it's case to satisfy the legal requirements of antitrust laws. The motion to dismiss lays this out very clearly. It will be fun to see SR's response.

Karen Coyle said...

Brenton, are you equipped to make an analysis based on antitrust law? I keep hoping we'll find someone with that expertise who can comment on the case, but so far no one has offered. I'd love to know what this looks like to an antitrust lawyer.

I have to say that the main reason I would like to see the case go forward is that we might get answers to questions like: how much are libraries generally paying to upload records to OCLC? Although obviously an antitrust lawsuit is an extreme method to gain a few answers.

Brenton said...

No, yet the oclc lawyers sure have. They lay out very clearly the criteria to meet antitrust laws and I believe this (surely you aren't suggesting they are lying about the criteria, the courts would know the antitrust laws!. And I reread the SR complaint several times - and agree they have not met the criteria. An obvious example- plaintif must prove hardship to the players in the market, not to an indivudual organization, and they simply have not done that. Another, SR's complaint says oclc is monopolistic in the ILL market, yet III/SR says they are not in that market - huh?

Also, I agree, extreme indeed to do this to get answers - and very costly to both organizations. Lets face it, oclc is working on a promising product and III feels threatened. That's all - nothing more.

Anonymous said...

Thought it might be interesting to share on e of your previous comments about oclc copyright of WorldCat:

"the text clarifies OCLC's claims to copyright:

While, on behalf of its members, OCLC claims copyright rights in WorldCat as a compilation, it does not claim copyright ownership of individual records.

Of course, claiming copyright and actually having the right are not the same thing, especially with databases. Here's what BitLaw says:

Databases as Compilations: Databases are generally protected by copyright law as compilations. Under the Copyright Act, a compilation is defined as a "collection and assembling of preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship." 17. U.S.C. § 101.

So only of of the two criteria needs to be met and the first sure does -no one can (logically) argue with that...worldcat is a collection and assembly of preexisting materials - period.

Karen Coyle said...

Anon, it has to meet this entire definition:

"preexisting materials or of data that are selected in such a way that the resulting work as a whole constitutes an original work of authorship."

It's the originality and creating something new that is the key.

Anonymous said...

And of course as a huge union catalog with several added features, it is new (IMO). There are several value-added "faces" of worldcat - cataloging , ill, worldcat.org, firstsearch, etc. Thanks for the clarification. But of course this is not relevant to the lawsuit.

Jonathan Rochkind said...

Anon, on page numbers.

The reason that West's own page numbers from within West publications were not deemed copyrightable by the court is that simply numbering pages sequentially does not contain the minimum 'modicum of creativity' neccesary to create copyright. "two always comes after one, and no one can copyright the mere sequence of Arabic numbers" [this latter from http://en.wikisource.org/wiki/West_Publishing_Co._v._Mead_Data_Central,_Inc./Opinion_of_the_Court#A._Copyright_Protection]

To me, it's pretty clear that if simply numbering pages you publish sequentially does not create copyright in those page numbers themselves -- and this was the determination of the court and current law -- then simply numbering records you distribute sequentially would also not create copyright in those numbers themselves.

But of course i'm no lawyer.

This is a different issue than whether 'the database as a whole' is copyrightable. I am specifically talking about whether OCLC could conceivably copyright the _OCLCnums)_ themselves, and prevent people from telling other people OCLCnumbers without an OCLC license. Which is exactly what West was trying to do in their similar situation -- prevent others from sharing West page numbers without a license.

Just because it can be used 'like' a citation doesn't mean it has the same copyright value as a citation. In fact, West page numbers were useful _precisely_ because they were used as or in citations, as well. The analogy holds here too.

Although I question your claim that an actual full citation is copyrightable either, if you have any case law to back this up I'd be interested in seeing it. I suspect that individual citations are ALSO not copyrightable.

Jonathan Rochkind said...

[Oops, heh, I just realized that my actual quote on "two always comes after one" was from an intermediate court decision supporting protection of the page numbers. In fact though, the eventual decision -- creating the current law -- was that the page numbers were not protected.

I still insist that if any court found that OCLC numbers were copyrightable, it would in fact change the law, and probably make West page numbers somehow again copyrightable too. Which can always happen, case law changes over time. Because I can see absolutely no difference in the situation of simply applying incremented arabic numbers to pages you publish, and simply providing incremental arabic numbers to records you distribute. Your claim that this is "apples and oranges" seems ridiculous to me, and I don't understand what leads you to make it. ]

For setting the record straight, here's some contemporary legal analysis on the Supreme Court case where West lost protection of page numbers: http://newsbreaks.infotoday.com/nbreader.asp?ArticleID=17947

I tried to find the actual opinion to link to, but started to get confused as to what was what so won't post a possibly mistaken one again.

Jonathan Rochkind said...

Ah shoot, sorry for spamming your blog Karen, clearly my legal research skills aren't what they used to be. I was having trouble finding the right opinion because I remembered the name of the case wrong -- West v. Mead is an earlier case where West's protection of page numbers was upheld.

It was later that the law was changed and it was made clear that page numbers were not protected, in: Bender v. West, 158 F.3d 693 (2d Cir. 1998), cert. denied, 526 U.S. 1154 (1999)

Anyway, despite my errors in tracking down the right citation, it is the case that West's page numbers are, in today's law, not copyrightable.

Karen Coyle said...

Jonathan -- not to worry, your posts are very welcome. At least they've got some actual information value!

Trent said...

Jonathan - Thought this article by a lawyer and law professor might help the issue of copyrighting page numbers. Read the last paragraph - "However, the Supreme Court’s refusal to resolve this issue means that it may be litigated in other Circuits, with a
possibility that other Circuits may adopt the holdings from the Eighth Circuit Mead
Data Central and Oasis decisions."

Since cert was denied by the US Supreme Court, other Distric Courts can compe to a different conclusion, they are not bound be decisions of another district.


Trent said...


sorry, I cut off part of the url.

Trent said...

Not sure what's going on -- after the 99, please add 07_CC.pdf.

If that doesn't work, try: http://www.aallnet.org/products/pub_sp9907/

And go to page 35.

Anonymous said...

Re your statement "I find these statements to be embarrassingly unprofessional in nature, although for all I know this is the norm in legal arguments."

I asked my lawyer father in law, and he does not find any of those statements out of line with what he's seen in his 40-some tenure as a lawyer.

He also took offense at your supposition about winning a case by out-witting the other attorney, saying they are won on actual facts. I find his statement hilarious considering he still argues certain "facts" with me even after I have shown him multiple sources refuting his "fact".