Administrative Law

(posted by Peter Hirtle)

One of the more interesting recent conflicts in the Georgia ereserves case concerns an expert report on ereserves prepared by Kenneth Crews of Columbia for the defendants.  The plaintiffs tried to stop the report from being entered into the trial, but the judge allowed it.  The plaintiffs then filed their responses to the expert report and Crews has responded to them. 

I had been hoping that the expert report might show up on the Justia web site for the case or in the RECAP files, but it hasn?t.  I therefore got a copy of the report and its appendices from PACER and have posted them at Scribd.  The files consist of the full report and five appendices:

• Crews?s cv
• The 1976 Classroom guidelines
• The repudiated 1982 ALA Model Policy
• The unadopted 1996 CONFU Reserves Guidelines
• Copies of reserve policies from a large number of colleges and universities.

One can see why the plaintiffs wanted to keep the report out of the record.  It is essential reading for anyone interested in ereserves in libraries, and makes a very strong case that ?the Georgia University Policy, as examined in this report, is consistent with the copyright law of the United States, and when followed by instructors, librarians, and others at the university, the policy will provide an effective means for promoting compliance with the law at the university? (p.68).

The most important part of the report are found in Part IV, where Crews describes the evolution and importance of reserves in libraries, and Part V, where he discusses the legal basis for ereserves.  In the latter section, he highlights the judiciary?s evolving understanding of fair use.  The courts, he suggests, have abandoned an earlier formulaic approach to fair use and have moved to a more flexible interpretation of the law.  Along the way, he demolishes certain assumptions that have been too-easily accepted by some librarians, such as the necessity of getting permission for subsequent use and the need to follow strict percentage guidelines when copying for reserves.  He also conducted a review of the reserve policies in use at schools around the nation (and in the process compiled a handy implicit checklist of issues for anyone developing a reserves policy to consider).

Crews?s response to the critics of the report discusses in detail the insufficiency of licensing as an alternative to an ereserves system based on fair use.  He also discusses why ereserves do not threaten the future of scholarly publishing.

There are of course areas that I wished he had emphasized more.  I think more attention could have been paid, for example, to the role of the library in supporting copying by students that, if done by the student, is likely legal.  If we focus on library reproduction, we make the library appear to be the publisher of anthologies and not the agent of students.  In addition, I don?t know enough about the law to know whether the inefficiency and unfairness of some licensing is a justification for limiting the scope of licensing.

Nevertheless, this documentation is an important contribution to the ereserve discussion and should be required reading even for those librarians not interested in the case but only in the topic.

UPDATE: Dan Lee pointed out to me that the PDF files downloaded from PACER do not seem to open in Acrobat Reader.  I use the free Foxit Reader, and it opens the downloaded files just fine.  So do two other free PDF readers I use, PDF-Xchange Viewer and GSview.  If anyone knows how to fix the PDFs so that they appear in Acrobat, I would love to hear about it.