Welcome to the Free Online Scholarship Newsletter
     June 1, 2001

Can scholars be sued for linking to scholarship?

One of the promises of online scholarship is interlinking between citations and sources.  In print, footnotes and bibliographic citations are inert pointers to literature.  In an electronic medium, we can finally make them deliver the goods. 

Is this promise threatened by recent legal decisions holding that some hyperlinks are unlawful?  Michael Overing has just published the second of a two-part study of the linking decisions for the _Online Journalism Review_.  He doesn't address FOS issues but does an excellent job reviewing the cases so that we may draw the consequences for ourselves.  My reading is that, unless clarified and limited, some of these precedents could threaten FOS.

Many of the cases involve commercial interests.  Company A might be liable to company B if it links to B's web site in a way that harms B's reputation ("click here for the bandits who sold my credit card number to the Mafia") or that suggests that the service described on B's page is really offered by A ("click here for the best price on a round-trip ticket to Jamaica").  B's consent to the link solves this problem, and will probably keep the problem from arising in academic settings.  For example, most of the publishers participating in CrossRef are for-profit publishers with strong commercial interests, but their consent to participate bars them from complaining about citation links.

However, not all scholarly linking is facilitated by CrossRef and not all of it is consensual.  If any of it could be construed as defamatory or fradulent, it might be challenged in court.   What would a court say about "click here for an article drawing invalid conclusions from falsified data"?  Or "click here for the ranting of a third-rate scholar under the delusion of being a second-rate scholar"? 

The Washington Post gives permission for incoming links which do not use its logo or bring up its stories inside a frame.  But it reserves the right to "revoke permission" for any kind of link at any time.  The Post is assuming here that all links must be consensual.  This allows it to pass as generous for granting permission in advance to most kinds of incoming link.  This is a dangerous model which doesn't depend at all on the fact that the Post sells its news stories for a profit.  If you've ever tried to get a publisher's permission to photocopy an article for students, and waited more than six months for a reply, then you can imagine how quickly scholarship would grind to a halt if scholars had to get permission for citation links, even if there was no charge.  The only good news here is that the Post position has apparently never been tested, let alone upheld, in court. 

Some newspapers charge $50 for every link to their news stories.  Enough of them now pretend that they have a right to charge for incoming links that a new company, iCopyright, has emerged to collect money from linkers, distribute it to linkees, and take a cut for itself.  An iCopyright official told _Wired Magazine_ that 70 publishers representing 300 publications now charge for incoming links.  Some, like the Albuquerque Journal, employ iCopyright without even realizing that it charges for links to their news stories.  These charges are almost certainly unenforceable.  I could charge you for looking at me but I couldn't make you pay.  What's disturbing is the evidence of an emerging culture of acquiescence which assumes that the charges are legitimate.

DeCSS is software for bypassing the encryption on DVD's.  The hacker magazine, 2600, was  convicted last August of violating the Digital Millennium Copyright Act (DMCA) for publishing the DeCSS source code on its web site and for linking to other sites which published the code.  The court disregarded a precedent holding that uncompiled source code was protected speech.  In this case, the software violated a statute, the DMCA, which prohibits bypassing the encryption on copyrighted works. 

How far does this precedent go?  If linking to a page which violates a statute is enough to create liability for the linker, then scholars are in trouble.  If your article quotes a bit too much of a certain source and violates "fair use" (i.e. violates Title 17, Chapter 1, Section 107 of the U.S. Code), and I link to your article, then can your source sue me as well as you?  What if you and I both know or ought to know that your article violates fair use?

The DeCSS appeal was only argued last month (May 1) and has not yet been decided.  I'll report the outcome here.  Meantime, what implications do you see in this case for FOS issues?  Post your thoughts to our discussion forum.

Michael Overing, Licensed to Link, Part One
From the _Online Journalism Review_

Michael Overing, Impermissible Links, Part Two
From the _Online Journalism Review_


Washington Post linking permission page

Declan McCullagh, Free Links, Only $50 apiece
From _Wired Magazine_


2600:  The Hacker Quarterly

Ditigal Millennium Copyright Act

OpenLaw site on DeCSS legal issues
From Harvard's Berkman Center

David Touretzky, Gallery of CSS Descramblers

* Postscript.  In this article I don't link to DeCSS source code, but I do link to a site which links to it.  If the distinction between linking to a DMCA-violating page and a copyright-violating page is tenuous, or if the distinction between textual source code and executable source code is tenuous, then what about the distinction between one degree of separation and two?


Making journals inexpensive enough to give away

Even free online scholarship is not free to produce.  Print journals cost more to produce than online journals, but even online journals use up resources, not the least of which is labor.  If online scholarship is to be free, then the costs must be made so low that institutions like universities, libraries, foundations, and professional associations can subsidize them without pain.

A new software suite called BlueSky promises to take a big step in this direction.  Announced this week (May 28) at the conference of the Canadian Association of Learned Journals, BlueSky streamlines the production of a print or online journal.  The idea is to automate so much of the process that time, labor, and costs are all vastly reduced.  The BlueSky web site boasts that the software itself costs less than the wages of a graduate student assistant. 

BlueSky automates the entire process of manuscript submission, handling, and review.  With a few mouse clicks, editors can assign a manuscript to a reviewer, track the reviewer's progress, nag the reviewer, read the reviewer's judgment, and decide whether to accept, reject, or resubmit the manuscript.  If the editor accepts the piece, then a few more mouse clicks determine its output format (HTML, PDF, eBook, CD-ROM etc.) and generate statistics on reviewer time and acceptance rates.  BlueSky also automates the management of subscriptions, hosts online journals without their own hosts, and digitizes the back issues of print journals moving to the web.  It can generate any kind of metadata for journal articles, including OAI metadata, and can make archive-quality prints for deposit in international archival centers.

Because BlueSky is publishing software, not a publisher, it doesn't want a copyright in the resulting journals.  It even encourages journals to leave copyrights in the hands of authors.  Journals retain full control over their subscription price, if any, and their look and feel. 



In other publications

* Since 1997 the journal _Pediatrics_ has been publishing a freely available peer-reviewed electronic supplement to its 53 year old print edition.  In 2000 the journal's publisher launched a study of authors who published articles in the online-only supplement.  How satisfied were they with the readership, citation history, reprint requests, email contacts, responses of tenure committees, and other measures of the impact of their articles?

From _Journal of Electronic Publishing_

* Sam Vaknin wonders why the Encyclopedia Britannica is struggling to survive when it has a superb reputation and heavy internet traffic.  Good question.  Part of Vaknin's answer is that encyclopedias are less useful in the age of the internet than before.  But most relevant to FOS is the rest of his answer.  He argues that EB was too slow to appreciate the significance of free online access, and let rivals capture the online audience before it put its own content online.  If true, the lesson may apply to other forms of scholarship as well.

From _InternetContent_


What should libraries stand for in the age of the internet?

The American Library Association is soliciting comments on its draft document, "Library Principles for the Networked World."  The document was drafted last month by 40 representatives from 22 ALA divisions in an attempt to update the 1993 "Principles for the Development of the National Information Infrastructure." 

The draft organizes its principles under six headings:  the First Amendment, privacy, intellectual property, infrastructure, equitable access, and content.  Nothing in the draft directly calls for free online scholarship, but several principles call for wide, affordable, and equitable access to information.

Library Principles for the Networked World (Draft)

How to comment on the draft


Catching up

* The phased retirement of Grateful Med began in January 2001 and should be complete by September 2001.  Grateful Med's functions will be taken over by the National Library of Medicine.

Phase-out announcement

Internet Grateful Med

U.S. National Library of Medicine

* Did you know that the Professional and Scholarly Publishing Division of the Association of American Publishers (AAP) wrote a 1997 white paper called, "Professional and Scholarly Publishing in the Digital Age"?   Here's a quiz.  Can you tell what position the AAP takes on free online scholarship without reading the white paper?   Here's a clue:  The AAP is the largest trade association of for-profit book publishers in the U.S.  Here's a second clue:  the paper is not available on the internet and the AAP charges members $25 and non-members $40 to buy it.

Professional and Scholarly Publishing Division of the Association of American Publishers

White paper order form



If you plan to attend one of the following conferences, please share your observations with us through our discussion forum.

* Joint DELOS-NSF Workshop on Personalisation and Recommender Systems in Digital Libraries
Dublin, June 18-20

* Joint Conference on Digital Libraries
Roanoke, Virginia, June 24-28

* First DELOS International Summer School on Digital Library Technologies
Pisa, July 9-13

* Developing an agenda for institutional e-print archives
London, July 11


Keep us in the loop

If you make an FOS-related contribution to another mailing list, discussion forum, or newsgroup, just add "suber-fos@topica.com" to the cc list, and a copy will go to our discussion forum as well. 


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Peter Suber

Copyright (c) 2001, Peter Suber

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