Welcome to the Free Online Scholarship (FOS) Newsletter
September 15, 2002

Remembering 9/11

Here's a snippet from the newsletter one year ago yesterday, the first issue after the attacks on New York and Washington.

FOSN for 9/14/01

* Open societies and open scholarship

There are complex and subtle connections between the kind of open society that is most vulnerable to acts of terror and the kind of open scholarship that is the focus of the FOS movement and this newsletter.  Open democracies can limit scholarship to those who can afford to buy it.  This was the norm before the internet gave us a viable alternative, and it is still the norm in most disciplines today.  But the converse tends not to hold.  Societies that limit democracy in the name of security also tend to regulate scholarship in the name of security.  The February jailing of Chinese scholar, Li Shaomin, for accepting Taiwanese funds to research subjects politically taboo in China is only one recent example in a dismally long list.

We should not confuse free as unpriced with free as uncensored.  Open societies can put a price on literature more consistently than they can silence it.  Leaving it uncensored is no barrier to charging money for it.  But putting it online free of charge is a barrier to censorship, even if it is one that governments around the world are gradually learning to surmount.

The U.S. is an open democracy.  It may fall short of your ideal of an open democracy, and even its own.  But when judged against past and present democracies, rather than ideals, it is far to the open end.  Yet the U.S. has convicted 2600 Magazine for publishing source code and linking to web sites that did the same.  The U.S. is prosecuting Dmitri Sklyarov for writing, discussing, and selling source code.  Edward Felten may be prosecuted for the same acts, and has yet to get a court to declare that he had a First Amendment right to publish the fruits of his research.

It already seems that one response to the attacks on New York and Washington will be the kind of diminution of liberty that facilitates law enforcement, for example, more airport searches, more sidewalk face scanning, more email eavesdropping, less strong encryption.  If so, then the U.S. will become a less open society.  But it will not on that account alone become less open with its scholarship.

So above all, let's not oversimplify.  Open societies do not guarantee open scholarship, and open scholarship does not guarantee open societies.  Within limits, each can take its lumps without the other suffering.  However, each is an important support, in a complex web of support, for the other.  Hence, they tend to thrive or suffer together.  Unfortunately, seeing them both compromised and limited is more common than seeing both thrive.  This is a reason for special vigilance in the months to come.

* Here are some further reflections one year later.  They're less FOS-specific, so I point to them without reprinting them here.  Short version:  The "special vigilance" I called for a year ago has been exercised more by U.S. citizens than by the U.S. government.


Measuring FOS progress, Part 1

Let's say that the "adequacy" of FOS is the percentage of the peer-reviewed literature from a given time period for which there is open access.  We can talk about the adequacy of FOS in a given field, in a given language, in a given year (or other period), or we can speak of the adequacy of FOS overall.  Our goal is to increase the adequacy of FOS every month in every field in every language until we reach 100% across the board.  We can also set more provisional goals, such as 75% adequacy for geology in English by 2005.  To the extent that FOS is still inadequate, scholars must still search priced or printed literature, and cannot assume (or let their students assume) that "if it's not free online, then it's not worth finding".

Unfortunately, we're very far from being able to measure adequacy.  In a recent discussion I put the problem this way:

[W]e have no good way of measuring the percentage of a discipline's published literature that is available online free of charge. An army of volunteers could take the measurement, but so far no army of volunteers has been mobilized to do so for any discipline. Software cannot do the job unless supplemented by human labor to tally the print-only literature inaccessible to software. Moreover, the measurement would have to be repeated every month to capture this very dynamic moment in history when publishers of all kinds are experimenting with ways to take advantage of the Internet.
Here's an open call for volunteers --not necessarily an army.  Let's start at the beginning.  Before we try an actual count of the peer-reviewed articles published in a given field in a given language in a given period, let's see if we can come up with an efficient and accurate way to conduct such a count.  This is a call for library virtuosos to share their wisdom.

Lists of peer-reviewed journals will be easier to come by than timely updates to those lists or non-controversial decisions about whether to count a given journal in a given field or even whether to count a given article in the "open access" column.  Once we've made some of these preliminary decisions, running a count on open-access journals can be automated, although writing the program would be non-trivial.  Running a count on priced online journals could also be automated, but would face new hurdles.  Running a count on print-only journals could not be automated, but some subsets of these journals are indexed in digital references, making them susceptible to an automated count.

If the most efficient method were expensive, then we could apply for grants to carry it out periodically (at least for major disciplines and major languages).  If it were less expensive, then we could expect scholars to make periodic counts, at least in the fields or languages that interested them, and publish their results.  An online clearinghouse could collect the results, support comparisons and tracking, and prevent duplicated labor.

Anyone game?

The quotation is from James Morrison, "The Free Online Scholarship Movement:  An Interview with Peter Suber" (September-October issue of _The Technology Source_)

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Measuring FOS progress, Part 2

Here's a less objective approach.  Imagine a coordinate plane.  The x axis represents general acceptance or rejection.  The y axis represents friendliness or unfriendliness to FOS.  To plot something in quadrant I (upper right) is to say that it is both accepted and friendly to FOS.  The further it is to the right, the more it is accepted or entrenched, and the higher up it is, the more favorable it is to FOS.

We can use the plane to plot the significance of a development to FOS.  For convenience, let's put an upper limit of 10 and lower limit of -10 on the values of x and y.  But at the same time let's admit that the exact coordinates for a given development will be somewhat arbitrary and subjective.  For example, is self-archiving by researchers more like <3, 10> (more accepted than rejected but very friendly) or more like <-3, 10> (more rejected than accepted but very friendly)?  Is open access after a six month delay more like <3, 5> (somewhat accepted, moderately friendly) or more like <3, -2> (somewhat accepted, somewhat unfriendly)?

If you really draw the plane, plot the points, and replot them periodically, then progress will be shown by the movement of points into the upper right and lower left quadrants.  Above the x axis, the further to the right the better, and below it, the further to the left the better.  If there's a cloud of points in either the upper right or lower left quadrants, that's good.  If there's a cloud of points in either of the other two quadrants, that's bad, even if the exact positions within the quadrants are arbitrary and subjective.  For many purposes it will enough to classify items by quadrant without assigning specific coordinates.

We can reduce some of the subjectivity by comparing our values with others or by voting for values as a group.  But in my examples below, I didn't have time for either precaution.  Hence, I've given quadrants without coordinates.  I didn't want my own subjective evaluations to trigger distracting or divisive quarrels. Moreover, I'm less committed to any particular set of numbers than to the way this plot, when done with more care or communal input, can give us a useful overview of where we stand.  If others agree, then another way to reduce subjectivity is for interested users to tighten my loose definitions of the two axes.

I can imagine a third dimension or z axis measuring effectiveness or impact, but I won't add that layer of complexity to this sketch.

* Here's how I'd plot a dozen or so initiatives and developments in quadrant I (upper right):  accepted and friendly to FOS.

BioMed Central
Budapest Open Access Initiative
Creative Commons
Deep linking
Delayed free access (embargo period)
Digital libraries
Eprints software
Open Archives Initiative
Public Library of Science
Self-archiving by researchers
Tiered journal pricing for developing countries
Tradition of scholars not demanding payment for research articles

* Here are some items I'd place in quadrant II (upper left):  generally rejected but friendly to FOS.

Government willingness to require open-access publication of research results as a condition for grants
Journal willingness to let authors retain copyright
Endowments for open-access journals
First-sale doctrine for digital content
University willingness to pay for outgoing articles rather than incoming articles

* Here are some items I'd place in quadrant III (lower left):  generally rejected, unfriendly to FOS.

Compulsory web filters in schools and libraries
Overt censorship of scholarly literature

* Finally, here are some items I'd place in quadrant IV (lower right):  accepted or common, but unfriendly to FOS.

Compulsory web filters in certain nations
Copyright extension (e.g. Bono Act)
Cross-border censorship
Digital divide (maldistribution of hardware, software, connectivity)
DMCA anti-circumvention clause
High prices for journals
Licensing terms that waive fair-use rights
Publisher consolidation, monopoly

* Exercise:  Where would you put the following:  "declarations of independence" (in which journal editors leave a recalcitrant publisher in order to relaunch a similar but open-access journal with another publisher), digital preservation initiatives, DOI's, ebooks, free and open source software, Google, GPL, grid computing, the Ingelfinger rule, reference linking, the semantic web, UCITA, and WIPO?


The right not to look

In an August essay for _GigaLaw_ on pop-up ads, Doug Isenberg reports a conversation in which a publisher's lawyer told him

that he thinks Internet users who configure their browsers to disable graphics (a common tactic to boost the speed of Web surfing) are committing copyright infringement because they are interfering with Web publishers' exclusive right to control how their pages are displayed.
Browsers have always given users control over font size, column width, certain colors, and other look-and-feel parameters of HTML files.  Publishers who produced HTML always took the risk that users would not see pages exactly as the publishers intended.  Fixing this problem was the primary rationale for formats like PDF.

On the one hand, disabling graphics in your own browser is like deleting the nude scenes in your own copy _Titanic_, a self-regarding act that is nobody else's business.  If it is objectionable, it is on aesthetic rather than legal grounds.  When purchasers of _Titanic_ videos bowdlerize them, they're protected by the first-sale doctrine.  Disabling graphics doesn't have quite the same legal basis, because first-sale doesn't apply to web pages, but surely it's covered by the First Amendment (users' freedom to view what they like) or contract (publisher's consent inferred from the use of HTML rather than PDF).

On the other hand, circumvention without infringement (e.g. for fair use) seems just as legitimate as disabling graphics in one's browser, and yet is now criminal in the U.S.  The lawyer cited by Isenberg may be delusional, but he is not alone.  He believes that skipping web graphics is theft.  Jamie Kellner, CEO of Turner Broadcasting, believes that skipping TV commercials is theft.  If publishers win the right to make viewing their products an all-or-nothing proposition, eliminating the freedom to view some parts and skip others, then reading a web page or watching a TV show will suddenly be like getting married or joining the army:  a free act that limits one's freedom, a serious commitment that requires serious reflection.

If publishers make graphics inseparable from text by using PDF, or by making the text itself into an image, then we can factor that in when deciding whether to open a file, keep reading, or move on.  But if they do it by criminalizing choices necessary for the freedom of reading and viewing, then they are making their business plan depend on the denial of our freedom.

It looks like this just has to be bad for business.  If so, then copyright extremism is self-limiting.  But if not, then perhaps the secret lies in a marketing strategy that props up an anti-consumer business plan with DRM and DMCA, software and law, so that consumer alternatives are physically impossible and legally impermissible.

This strategy might work to stop circumvention.  But it won't work to make us look at web graphics or TV commercials.  Spinoza defended the freedom of thought by arguing that what cannot be stopped should not be prohibited.  Legislation to prohibit it anyway would only undermine the respect for law.  At some point Congress must understand that there is more at stake here than intellectual property.

The quotation is from Douglas Isenberg, "Are Pop-Up Advertisements on the Web Illegal?" (August 2002 contribution to _GigaLaw_)

* Postscript.  Disabling graphics and skipping TV commercials are easy cases.  But bowdlerizing copies of _Titanic_ has some interesting complexity.  At first, I thought this was merely a consent and first-sale issue.  If I want to avert my eyes from nude or violent scenes, I may.  If I want to mangle the copy I bought, I may.  On the other side, copyright holders definitely have a right to prevent the distribution of mangled versions of their work.  This is one of the only copyright protections that FOS scholars might want to retain.  For a while I thought there was a fairly bright line between private, consensual mangling and public distribution of mangled copies to the unknowing and unconsenting.  But there isn't.  The Colorado company that makes a business out of mangling _Titanic_ DVDs wants the right to sell its mangled copies to the public.  Most buyers will know they are buying a censored copy, and consent to do so, but some may not.  Will we require consumers to sign a consent form?  When consumers think they are buying (or even just watching) A and get B instead, are *publishers* injured?  If so, then protecting the integrity of a copyrighted work can conflict with the first-sale doctrine.  Which should give?  My current view is that DVD manglers have a right to proceed if they buy the copies they mangle, then mangle them, and then sell them.  That makes their business an eccentric subset of the used-DVD market.  It's only when they publish new mangled copies that they violate copyright.  But in that case, the mangling is not as salient as the publishing.

Reuters story on the lawsuit to establish a right to sell mangled movies


Two areas of law

In the United States, the two areas of law that I cover most in FOSN --copyright and civil liberties-- have changed fundamentally in the very recent past.  The changes are unusually rapid and unusually radical.  They face dissent, but from unusually few citizens and unusually few courts.  This is an ominous combination.

Both areas of law have a constitutional basis, and both have drifted far from what were formerly their settled constitutional standards.  In both, Congress adopted radical rules that repeal rights of Americans.  In both, the changes are so egregious by constitutional standards that courageous federal courts should overturn practically all of them.  But most courts have so far been acquiescent.  (This is more true on the copyright side; exceptions are starting to appear on the civil liberties side.)

Civil liberties law took a sharp right turn after September 11.  The clear rationale was to detect and avert terrorism.  Whether the threat of terrorism justifies every provision in the new enactments is very far from clear, but at least the danger is clear and the necessity of a response is clear.

The rationale for the copyright revolution is the internet --not infringers or criminals who use the internet, but the internet itself.  There have always been infringers and criminals, but a new and terrifying danger arose when they (and the rest of us) gained access to a worldwide network of universal Turing machines which supports the free distribution of perfect copies to huge numbers of people.

This is the feature of the internet that makes FOS possible.  It is something new under the sun, and we've barely begun to realize its beneficial consequences.  It is already a momentous public good, and has potential for much greater good.  But for the IP industry and Congress, this feature of the net is the equivalent of terrorism, a momentous harm, a disaster justifying the violation of first principles.

In both areas of law, we've had to argue that the response to threat and harm has needlessly jeopardized important public goods.  The argument has failed:  the war on terrorism has trumped civil liberties and the war on infringement has trumped the potential of a free internet.  There are distinctions to be made on both fronts that might permit undiminished vigilance against harm while preserving important public goods against overreaction.  But these are not distinctions that people heed when they are reacting heedlessly to the prospect of momentous harm.

Does this mean that FOS is inseparable from what Congress and the IP industry interpret as economic terrorism?  No, but it might mean that Congress will kill much that is momentously good about the internet in order to kill what it perceives to be momentous harm.  Congress doesn't have to do this.  The distinction to be made here, if Congress is willing to acknowledge it, is between giving away content and selling it.  Scientists and scholars do the former, while publishers and movie studios do the latter.  The rules for one needn't interfere with the other, but that's precisely the nicety lost in the frenzy of self-protection.  (There are other distinctions lost in the same frenzy, distinctions that would protect consumers even in their purchase, use, and sharing of non-FOS content, but that's another story.)

In both areas of law, the argument that we should be careful and recognize certain distinctions is not merely rejected; the argument itself is interpreted as complicity with wrongdoers.  John Ashcroft, speaking for the war on terrorism, and Michael Eisner, speaking for the war on infringement, both make this interpretation, for example.  This is not a response made by careful thinkers who have counter-arguments or even by fair-minded people who lack counter-arguments.  It's the kind of oversimplification that reflects interest or panic.

I understand panic.  But one would like to think that when the goods in jeopardy from reckless regulation are significant, rather than trivial, then even distracted legislators could acknowledge the problem.  Then they could say, "You're right, let's work on this" or at least "You're right, but we can't address your concern until the danger subsides."  But instead, they say, "You're wrong.  What problem?"  On the civil liberties side, the goods in jeopardy are the freedoms guaranteed by the Bill of Rights.  On the copyright side, the goods in jeopardy are all the forms of open access and free sharing that have author consent, including FOS.  Perhaps we must accept that tech-ignorant legislators will be slow to acknowledge the public good of an information commons or a free internet.  (And perhaps not:  this is as much about knowledge and freedom as technology.)  But the Bill of Rights?

* Postscript.  Here's a more specific analogy between terrorism and the internet.  What does a box cutter have in common with tools for circumventing copy protection on digital content?  Both are technologies with many non-criminal uses, but both are now prohibited because of one conspicuous criminal use.  Box cutters are prohibited on airlines.  Circumvention is prohibited even in pursuit of fair-use rights.

I don't propose this analogy seriously.  The similarity is noted, but the differences outweigh the similarity, and I want to highlight the differences.  There are strong legal and policy grounds for thinking that fair use is an important right, while carrying a box cutter on an airplane is not.  Fair use is at least as important as the revenue of copyright holders, while carrying a box cutter on an airplane is not nearly as important as saving lives.  Hence, it's much more justifiable to prohibit box cutters on airlines than to prohibit circumvention for fair use.

The true lesson here is that the DMCA anti-circumvention clause errs on one side when it should err on neither side.  Where the problem is right versus right (fair use versus copyright protection), then we must find a way to honor both or at least balance the two.  By contrast, in airport security the problem is right versus convenience --hence, it's justifiable to err on one side.  From this point of view, we see that in the DMCA the IP industry is doing exactly what infringers are doing, namely, erring on their own side rather than seeking the difficult yet constitutionally required balance.


Now that the newsletter is slowing down, what's the best way to keep up with FOS news?


This is the Free Online Scholarship Newsletter (ISSN 1535-7848).

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Peter Suber

Copyright (c) 2002, Peter Suber

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