Author Archives: Larry E Hibbler

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 The downside is that it is not binding precedent in the Second Circuit.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.

Fall 2024 Electronic Dissertation Workshops

Writing a dissertation takes a lot of work. Submitting a dissertation does not have to! The Libraries’ eTD@BC workshops for graduate students will prepare you to submit thesis or dissertation. Planning now can save so much time later, right at the end of the process when time becomes really valuable. This fall, there will be three sessions, one in-person and two virtual, all covering the same material.

Dates:
Tuesday, October 8, 6:30 – 7:15 pm, on Zoom.
Thursday, October 10, noon – 12:45 pm, O’Neill Library 307.
Thursday, October 17, noon – 12:45, on Zoom.

To register, go to https://libcal.bc.edu/calendar/workshops. Upon registration for an online workshop, you will receive a confirmation email with the Zoom link.

Topics to be covered in this workshop include:

The submission website, including a walk-through of the submission process
Important decisions and issues, such as eScholarship@BC, embargoes, copyright, etc.
How to ensure that a published eTD can be discovered and accessed by others
Where to get additional help

Graduate students can contact etd-support@bc.edu with any questions about the workshops. There will be additional workshops in the spring.

Open Access Publishing Fund opens soon!

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.

OSTP Federal Research Funding update

The White House Office of Science and Technology Policy (OSTP) has received funding from Congress to continue its implementation of the Nelson Memo. This memo requires any federal agency that awards research grants to implement a policy requiring immediate public access to publications resulting from that research, as well as access to data and the use of persistent digital identifiers in article metadata.

During the lengthy Federal appropriations process, the House Appropriations Committee released a bill that specifically defunded any attempt to implement the memo. No individual or lobbying group ever came forward to take any credit for trying to kill the OSTP memo in the budget, nor was there much explanation of why it might have been included.

The final appropriation bill (technically the explanatory statement accompanying the bill) only included a requirement that OSTP produce a financial analysis of the impact of the memo, “including the policy’s anticipated impact on Federal research investments, research integrity, and the peer review process,” within 100 days of the bill passing. In other positive news, this was the only requirement. There is no trigger stopping development of policy depending on what the report says. This likely means that after the report, there would be a round of Congressional hearings before more action is taken. Being an election year, there may not be enough time for a truly adverse legislative action. Overall, this means plans will progress, and there should be some good reading on the state of scholarly publishing sometime in mid-June!

OA Policy Changes at the Bill & Melinda Gates Foundation

The Bill & Melinda Gates Foundation has recently announced a “refreshed” Open Access Policy, to start in 2025. There is a lot to unpack.

The headline change for publishers is that the Foundation will no longer pay Article Processing Charges (APCs) for its funded researchers to publish Open Access. However, they have not stepped back from their support of Open Access. Rather than paying for post-publication OA, they are requiring posting all manuscripts on a preprint server. Not just any preprint server – one approved by the Foundation, with “a sufficient level of scrutiny to submissions.” The works must be licensed as CC-BY 4.0, or something similar. Interestingly, authors also must assign the license to an Author Accepted Manuscript of the article if it is published later. Any data that is used in the manuscript must also be made immediately available.

The Foundation is working with F1000, a subsidiary of Taylor & Francis, to create a preprint platform named VeriXiv. The platform will do a series of “ethics and integrity checks,” looking for things like plagiarism and image manipulation, as well as author-related conflicts. One thing that it is not doing is peer review. An author can still publish the article in a journal as well, as long as that journal respected the OA requirements of the Foundation, and the author would have to pay any APC themselves.

The question is how will this affect the publishing ecosystem? The Foundation awards more than five billion dollars in grants per year, which is enough to create real change. On the one hand, authors could decide that traditional publishing is not worth the time and cost, which the Foundation’s policy strongly suggests, and just move to preprints. On the other hand, authors may still have other institutional incentives tied to publishing output and prestige. Will this just shift the cost of traditional publishing to authors, and indirectly to libraries and universities that support them? It might work out that this is a lever to reduce prestige-based incentives at institutions, or it might work out that authors with fewer resources fall a little further behind.

This may also just be a business fight between funders and publishers, with researchers caught in the middle. Publishing is a bundle of services, including ethics and plagiarism checks, peer review, distribution and preservation. Commercial publishers charge a lot for that bundle. Starting with posting a preprint and then layering on other services could be cheaper, especially if one thinks different research outputs need differing levels of service. This opens the door to new business models, like stand-alone peer review services, as contemplated by the Publish-Review-Curate model of publishing. We will see who steps in to fill those needs.