It’s Time to Stop Copyright’s Violation of the U. S. Constitution

The jurisdiction in which it makes the most sense to reform copyright law so that it supports, rather than deters, access to research and scholarship is the United States. After all, the country’s Constitution empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The only other thing the Constitution seeks to “promote” is the country’s “lasting Welfare.”
Yet U.S. copyright law today violates this constitutional imperative. The evidence that copyright law is not promoting the progress of science comes from the federal government, academic community, legal profession, and publishing industry. It has been mounting over the last two decades, and while I plan to spend the coming year building a case for legal reform, let me sketch out some of the indicators of the law’s misalignment with the Constitution.
In the year

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NMOneSoure 2.0: Open Access to New Mexico Legal Information Is Now Powered by Lexum

New Mexico is one of the few U.S. States where the official publishing of legislation and case law is centralized in the hands of a specialized enterprise agency, the New Mexico Compilation Commission (NMCC), created in 1941. Over the last fifteen years, the State of New Mexico has been its own self-publisher of its official laws. NMCC has been providing three distinct online services: its agency website for posting slip opinions, formal and unreported opinions and new court rule amendments on behalf of the Supreme Court of New Mexico; a free, word-searchable online database of unannotated statutes at the request of the state legislature; and a legal research service called NMOneSource where legal professionals could gain online access to the official, annotated compilation of primary legal information relied upon by the courts and the legislature. Over the years, the technology supporting NMOneSource had fallen behind the rest of the legal publishing industry as the demand for free access increased. This prompted the NMCC to recently initiate a formal procurement to modernize its online publishing, reduce its operational costs and

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Lexum to Provide Online Access to New Mexico Legal Information

New Mexico is one of the U.S. States where the official publishing of legislation and case law is centralized in the hands of a specialized agency, the New Mexico Compilation Commission (NMCC). Over the last few decades, the NMCC has been providing two distinct online services: a free website of unreported judgments and unannotated legislation, and a commercial service called NMOneSource where legal professionals can subscribe to get online access to the official compilation of primary legal information from New Mexico. Over the years, the technology supporting NMOneSource has fallen behind the rest of the legal publishing industry. This prompted the NMCC to recently initiate a project to modernize its infrastructure.
It is in this context that the NMCC discovered CanLII, the Supreme Court of Canada decision website, and other official websites powered by Lexum technology. These free access websites, with their advanced legal research features, convinced the NMCC that providing

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Solex : Lexum’s Latest Search Engine

In the movie The Man with the Golden Gun, the Solex is a revolutionary device that is meant to solve the 1973 energy crisis. After killing its British inventor, an elite assassin steals the Solex to sell it to foreign powers. James Bond is dispatched to find the assassin and recover the precious device. Because this is a James Bond movie, as a matter of course, there’s also a laser.
Solex also stands for SolrCloud Lexum plugins, the latest iteration of the search engine Lexum deploys in all its products.
Lexum has used a wide variety of search engines throughout its history. It all started at the dawn of the Web, in 1994, with the Wide Area Information Server (WAIS). Then came the NQL search engine from a local Montreal firm. Then, for a year or so, AustLII’s SINO search engine. In 2003, we elected to build a search engine of our

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Scholarly Publishing Has Its Napster Moment

It has become widely known that scholarly publishing has been hit by its own version of Napster, with Alexandra Elbakyan’s creation of Sci-Hub, which offers up to 48 million pirated journal articles and, as we have more recently learned, hundreds of university press books through its dark-web companion site LibGen. Elbakyan’s site, which she initiated in 2011 when she was a graduate student in Kazakhstan, has since been sued for infringing and other causing “irreparable harm” to Elsevier’s copyright. The suit heard by the Southern District of New York Court has resulted in a preliminary injunction that managed to close the site, only to have it reappear out of reach in the world of the dark web.

Although I was surprised to find myself named, along with Timothy Gower at Cambridge, by Elbakyan in her letter to the presiding judge, what she has achieved is hardly the sustainable model of an open access publishing economy that many of us — who it should be noted have the access to research that she is missing — have been working to establish through various research and development initiatives.


Click the image to see a full-scale copy of this chart.

If the Napster analogy, however, does come readily to mind with Sci-Hub, it should serve as a reminder of how a well-entrenched industry can be caught napping in the face of technological changes, as it then struggles to control the rate of change, in the face of new economies and systems. The music industry is a prime instance of this, as neatly demonstrated by a recent New York Times article “In Shift to Streaming, Music Business Has Lost Billions,” Ben Sisario and Ken Russell on March 24, 2016. It included a very clear picture of the extent of both flux in technologies and decline in sales volume. While sales are leveling out, the form of delivery is still undergoing radical change (including the return of vinyl).

Among media industries, the publishing of scholarly journals has gone through an equally dramatic digitization, which has all but displaced print as a medium for sharing research results. Yet financially, one can see a dramatic difference between music and research by comparing sales figures, as I have done with my mashup of the Times’ graph to which I’ve added the four available data points for the total sales income of English-language science, technology, and medicine (STM) journals, drawn from the industry’s professional association.

The first thing to note is that STM annual sales growth of around six percent a year is reasonable enough, if it is seen as a combination of inflation and the growth in the number of articles published, which increases roughly three percent annually, according to Bornmann and Mutz and others.

What is to be questioned or commended, perhaps, is the scholarly publishing industry’s ability to cross the great digital divide, as well as the great 2008 recession, without the revenue disruptions suffered by other media fields, such as the music industry. Or another way to look at this is to wonder at the music industry serving its audience in 2014 for about 40 percent less than it cost that audience in 2006. And it is doing so in ways that appear to enable more people to listen to a greater variety of music, at least to judge by looking around wherever people are working or congregating, earbuds on or at the ready.

Yes, some artists feel shortchanged by music streaming royalties of a fraction of a cent, with Taylor Swift at the forefront, noting that “it isn’t as easy today as it was 20 years ago to have a multi-platinum-selling album, and as artists, that should challenge and motivate us.” Such concerns should only heighten our interest in comparing how her industry manages to offer more to listeners for considerably less to what is going on with research and scholarship.

The question for the scholarly publishing industry, led by the STM journals, is whether something like the music industry’s post-Napster dip still lies ahead for research journals, given Sci-Hub and related phenomenon. Can we look forward to new players offering new forms of research streaming, with some researchers, following the vinyl trend, turning to letterpress editions on fine paper of their favorite journals? And when this disruptive dip does arrive, will it similarly free up billions of dollars in savings, as happened with music, that will then go back into research and teaching?

Or does that miss the obvious? Haven’t waves of digital innovation also swept through scholarly publishing with streaming-like innovations like, PubMed Central, SciELO, Redalyc, PLOS One, African Journals Online, Directory of Open Access Journals, and the list goes on. What about the disruptive rise of publishing’s new open source software tools, such as LOCKSS, DSpace, and Zotero, as well as Open Journal Systems (which I work on)? If we have, in this sense, already witnessed the great digital reconfiguration of scholarly publishing, then it might appear that the core publishing industry has handily absorbed the post-Napster dip in revenue and costs, while continuing to head, as the mashup suggests, onwards and upwards.

Some may say it is too early to tell about such a dip in scholarly publishing, and others will protest that I compare apples and oranges, with little to be learned between them. What I hold is that the academic community needs to exhibit Taylor Swift-like acuity in defense of what are no less the rights associated with our work. We need to be part of a legal and sustainable reconfiguration of value within scholarly publishing, which means attending to the great variety of innovations that are emerging, and which for me, at this point, involves exploring the potential of open access publishing cooperatives.


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Lawsuit accuses PACER of overcharging for document downloads, misusing budget surplus

filestackFor digital document fans, the government’s PACER legal document retrieval system has long been a bone of contention. It charges ten cents per page for document retrieval, which can run into a considerable degree of expense when it comes to documents dozens of pages long—you basically have to pay to download it even to read enough of it know if it’s the document you actually want. (The fee is capped at $3 per single document but that can still run into significant sums.) As I noted a couple of years ago, I ran up $41 in PACER charges just while covering a story for TeleRead.

Ars Technica has a story about a class action lawsuit brought by three nonprofits against PACER, claiming that the proceeds of all those document payments are being misappropriated. PACER is authorized by law to charge fees necessary “to reimburse expenses in providing these services,” but the suit holds that millions of dollars in PACER proceeds have been used to pay for other projects instead. As it turns out, PACER was bringing in much more money than it needed.

“Rather than reduce the fees to cover only the costs incurred, the AO instead decided to use the extra revenue to subsidize other information-technology-related projects—a mission creep that only grew worse over time,” the suit (PDF) claims. Citing government records, the suit says that by the end of 2006, the judiciary’s information-technology fund had accumulated a surplus of $150 million with $32 million from PACER fees [PDF]. When fees were increased to 10 cents a page in 2012, the amount of income from PACER increased to $145 million, “much of which was earmarked for other purposes such as courtroom technology, websites for jurors, and bankruptcy notification systems,” according to the suit.

PACER also declined to provide a four-month fee exemption to journalists who needed to check the records to run an analysis of how effective certain legal software was. Effectively, PACER comes off as fairly greedy given how simple digital documents are to store and retrieve.

That’s why the late Aaron Swartz helped develop an alternate document retrieval system called RECAP, which automatically uploads pages downloaded from PACER to its servers so people can read them for free thereafter. It saves a lot of people a lot of money, but can only be updated one document at a time as PACER users pay to download them.

If PACER is making so much money that it’s able to run at a surplus, it seems that its retrieval fees should be cut back to something more reasonable. There’s no reason citizens should need to pay inflated rates to retrieve documents that are legally in the public domain.

The post Lawsuit accuses PACER of overcharging for document downloads, misusing budget surplus appeared first on TeleRead News: E-books, publishing, tech and beyond.

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