Controlled Digital Lending, Round 2

On June 28th, the Second Circuit Court of Appeals in New York heard oral arguments in the Controlled Digital Lending case Hachette v. Internet Archive. The judges probed both sides to find weaknesses in their arguments, positing a number of hypotheticals to push how far each side’s theory of the case went. The hearing lasted almost ninety minutes, well more than the scheduled time. 

Listening to the hearing, I came away feeling that the Internet Archive’s attorney was pushed a little harder than the Publishers’. Given that the Internet Archive was appealing a negative ruling where they lost on both the nature of the use and the effect on the market fair use factors, I am not surprised. 

A few takeaways from the hearing:

  • We did not get much argument on the issue of “Was the Internet Archive’s use a commercial use or not?” Even if this does not turn out to be determinative in this case, the issue could be very consequential for other non-profit organizations like the Wikimedia Foundation, which hosts Wikipedia.
  • I could not tell if judges were being intentionally vague in making comparisons of CDL to making copies for interlibrary loan, or if they did not fully understand the difference in making copies for interlibrary loan via 17 U.S.C. 108 and lending books, including by interlibrary loan, under 17 U.S.C. 109. I am sure the judge’s law clerks will get very acquainted with those sections while the case is being decided.
  • ASTM v. PRO, a case from the DC circuit about putting things like building codes that have been incorporated into law by reference, was mentioned as a possible analogy to show the lack of effect on a market for copyrighted material. This case in general is one of the best for Internet Archive, both in looking at lack of market harm, and at how copies can be transformative without adding to a work. The downside is that it is not binding precedent in the Second Circuit.

Keep in mind that oral argument is only part of the case. The judges will also consider briefs filed by both parties, as well as a number of amicus briefs filed by outside groups and scholars. Given the amount of briefing and argument in the case, I would not expect a ruling until fall at the earliest, and possibly not until the first half of next year.

What is “Inclusive Access” – and how is it different from Open Education Resources?

As publishers, librarians, faculty, and administrators continue to search for more equitable means of providing learning materials to their students, new methods and ideas have surfaced as ways of knocking down financial barriers to accessing textbooks and other educations resources.

One exciting new development from different academic libraries and library coalitions has been the development of Open Educational Resources, or OERs. According to Education Week, “Open Educational Resources are materials for teaching or learning that are either in the public domain or have been released under a license that allows them to be freely used, changed, or shared with others.” Generally, these resources are developed by faculty in conjunction with librarians or university presses with published expertise. As more and more OERs are created, more and more syllabi are including OERs, as professors know that students can access these materials without having to incur costs.

On the other hand, publishers have also tried to address the need for more affordable course materials by packaging access to materials in what they are calling “equitable” or “inclusive” access. When students enroll for a class, if they do not choose to proactively opt-out, the cost of their textbooks is averaged across the entire institution, regardless of the particular courses a student may be taking, and added to the students tuition bill – ensuring that students will be able to access materials assigned by a professor in a course. For teachers and students, these models can seem similar, as both ensure that students will have “Day One Access” to the materials (that is to say, they will have access to the course materials without an extra cost or step of buying the textbook on the first day of the semester). However, the methodology behind each is very different.

Open Educational Resources are built explicitly as low or no cost options for courses. These tools are often developed by faculty and generally under CC BY licenses, allowing for derivatives to be built and possibly improved by future uses and technologies. Inclusive Access, however, is a profit-motivated model that being rolled out by publishing companies to make sure their materials are in the hands of students and being used in courses. Ultimately, because the impact on faculty and students in the classroom or taking a course can be similar at the point of use, sometimes OERs and Inclusive Access can be confused – but as the landscape continues to change and new technologies are developed, it will be important for librarians to be able to make the case for OERs and distinguish the two models for faculty. Studies continue to come out detailing the benefits of differing models – but the nature of OERs and their ability, generally, to be adapted, allows for students and faculty to be constantly engaging and creating new learning materials, while the same cannot be said for Inclusive Access which continues to stir concerns about transparency and overall cost.

Relatedly, Messina College recently opened its doors with a new associate’s degree program. Part of the promise of the program is the commitment to providing one-hundred first generation, high financial need students an opportunity to pursue an associate’s degree at Boston College. And indeed, as a part of this program, the costs of the textbooks and resources like laptops will be paid in advance. In this case, however, the university itself is footing the bill for the resources, without passing the burden of payment on to the students – certainly an exciting move towards a more equitable landscape on the part of the university!

Undeclared – A New Open Access Publication

In a post sent in the 2023 Summer Newsletter entitled, “MIT Direct to Open” the Scholarly Communications team described the launch of a new initiative helping authors publish monographs and books open access. This year, Chris Higgins, the Department Chair of Formative Education in the Lynch School, published a book entitled Undeclared: A Philosophy of Formative Higher Education, which discusses the importance for practitioners to remain focused on the development of the whole person – particularly in how that relates to the value of disciplines in the humanities.

Because this book was published using MIT’s Direct to Open model, anyone with an internet connection has access to the full PDFs of each chapter. However, just because it is open access does not mean every version is free – the book is available for purchase if you would like to own the hard copy. Additionally, just because something is made open access does not mean the free version will be the most available – often times, hard copies of books are available to own, but also have an Open Access version. Googling, “Undeclared Chris Higgins” for instance, produces a number of results that link to copies of the book available for purchase, but it is not until the third result – the MIT Press site – where the book is available open access.

A good way to find open access materials is to begin your search in our Boston College Libraries search. While we may not have the particular eBook in our collection, querying the Boston College catalogue can yield results that will direct you to the open access version. If you are interested in checking out a hard copy free of charge, we do have a copy of the book available for check out at the O’Neill library.

Additionally, the Direct to Open page at MIT Press offers a complete, browsable list of open publications, and there is also a regularly updated spreadsheet of books that have been published open access via the model. As the beginning of July, 2024, there are over 4,000 titles that have been published open access.

InfraFinder – a new tool from Invest in Open Infrastructures

As more and more libraries and authors are seeking open source platforms and technologies for their publishing, the need for a systematic way to consider options arises. Invest in Open Infrastructures has developed a new tool that can help practitioners decide what open source platforms might be best for a given use case.

The InfraFinder tool allows users to browse across 57 different open source platforms that have been developed for different purposes by practitioners prioritizing open models of publication. The tool has a number of different filters to effectively compare different technologies and platforms – in addition to specific information about each solution. When using the tool, a user can select up to four solutions at a time to compare across a number of categories and considerations – a very helpful way to compare open software solutions side by side.

This exciting tool is also relatively new – having been developed and released between 2023 and 2024. As more open infrastructure projects are developed and added to this tool it will become a more and more helpful place for authors and librarians to go to get a sense of what tools exist.

Open Access Publishing Fund opens soon!

Orange circular lock shown in "unlocked" position - the Open Access logo.

Applications for grants from Boston College’s Open Access Publishing Fund will open on June 3rd! Faculty, students and staff are encouraged to apply. Open access can be expensive, so the fund assists authors in making their new work available via open access when they do not have other grant funding. Applications can be submitted before an article is accepted, but the intended journal needs to be listed on the application.

Last fiscal year, the fund awarded more than $30,000 of grants for twenty-one publications, including an open access monograph. While open access may be most prevalent in the natural sciences, many different disciplines have taken advantage of the fund. Please contact Elliott Hibbler if you have any questions.

A pie chart showing a fairly even distribution of awards between Biology, Communication, Computer Science, Engineering, Envi Studies, Fine Arts, LSEHD, MCAS Core, Psych and Neuro, and School of Social Work. Biology, LSEHD, Fine Arts, and the School of Social Work have the most.