Open Folklore Makes Big Strides Heading into its Second Year, Still Lacks Governance Model

It’s been a while since I’ve written about the Open Folklore project. It’s been on my radar, but I haven’t had much time to process the steady stream of announcements, additions, and accolades.

Launched last year, Open Folklore is a collaborative project to provide open access to resources for the study and enjoyment of folklore. Partners include the American Folklore Society, Indiana University Bloomington Libraries, Indiana University Digital Library Program, and Utah State University Libraries (strategic partner).

The project has already made significant contributions to the accessibility of folklore resources. Here’s just a few of the recent activities:

You can read more about the changes and new features on the Open Folklore News page and on Jason Baird Jackson’s blog.

These are major developments that are the result of what must be significant behind-the-scenes work by the project team. Kudos to all. But I am still waiting for the project team address the governance issues that will be critical to the long-term stability of this initiative. Without a real governance model, Open Folklore is a project, not a permanent resource. In light of the Authors Guild’s decision to sue Hathi Trust and five universities, it seems very prudent for the Open Folklore team to outline its mandate, vision, organizational structure, and financial foundation. Why not take a cue from some other open initiatives (e.g., Wikipedia, WordPress) and establish a non-profit foundation to carry out this work?

A non-profit foundation doesn’t just help improve governance, it helps ensure transparency and accountability. Hathi Trust’s partner institutions and consortia held a Constitutional Convention earlier this month and passed a ballot proposal that calls for the establishment of an effective governance structure, but doesn’t call for the establishment of a charitable-status non-profit foundation. Until then, the new Board of Directors is only responsible to its institutional and consortia members, not the public at large. One might argue that it’s the same thing since the majority of Hathi Trust’s members are publicly funded institutions, but universities are notorious for hiding their financial information. Since this work is being carried out for the public good, why can’t we be more forthcoming about the very real resources being committed?

As much as I find the actions of the Authors Guild deplorable, these initiatives must find a way to demonstrate that they are working with the system and not just pushing the envelope. Even if the Hathi Trust is partnering with rights holders as Jason Baird Jackson points out, there are clearly flaws in the system large enough to dismantle the whole thing. It would be a shame to see some early mistakes derail these laudable efforts to combat the otherwise unmitigated march to expand copyright protection.

You can subscribe to the Open Folklore news feed if you want to keep up on the announcements. For more on the Authors Guild suit, check out Kevin Smith’s open letter to J.R. Salamanca, the author of a book listed as orphaned by the Hathi Trust.

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ArchivesSpace Project Announces RFP for Software Development

It looks like the ArchivesSpace project is ready to start developing. Mark Matienzo, the Technical Architect for the ArchivesSpace project circulated a Request for Proposals for the development of ArchivesSpace. The successful respondent will work with the ArchivesSpace project’s technical review team, comprised of a technical architect, professional archivists, advising developers, and build and release managers.

According to the notice posted on the ArchivesSpace Discussion List:

Questions must be received by 5:00PM EDT, Friday, September 16, 2011 and should be sent via email to Mark Matienzo, ArchivesSpace Technical Architect (mark.matienzo@yale.edu), and Katherine Kott, ArchivesSpace Development Manager (katherine.kott@gmail.com). Please format the subject line with the phrase “Question re: ArchivesSpace RFP – [overview of question]”. An email response or status of response will be provided by 5:00PM EDT, Friday September 23, 2011. Questions and answers will be sent to all known participants in the RFP.

Proposals are due by 5:00PM EDT, Friday, October 14, 2011. Proposals should be sent via email to Mark Matienzo, ArchivesSpace Technical Architect (mark.matienzo@yale.edu), and Katherine Kott, ArchivesSpace Development Manager (katherine.kott@gmail.com). Please format the subject line with the phrase “ArchivesSpace Proposal – [Business/firm name of respondent]”.

Exciting stuff. If you’re not familiar with the project, ArchivesSpace is a planned open source software application that combines the functional strengths of the two leading American archival collection management systems: Archon and the Archivists’ Toolkit. The project is supported by a grant from the Andrew W. Mellon Foundation and is a partnership between the New York University Libraries, the UC San Diego Libraries, and the University Library of the University of Illinois at Urbana-Champaign.

More information about the project can be found on the http://archivesspace.org”>project’s website. Mark also gave an update on the project at SAA 2011.

I’m looking forward to seeing a) who the successful developer will be and b) how the project will evolve during the run-up to the beta release (slated for early 2013). There’s already been some discussion on the list about adding an external documents feature to the names module and possibly the subjects module. I would be more interested to see some kind of OAI harvesting functionality that harvested the metadata rather than link to it. That could be one way to bring collections management closer to authority control projects like Social Networks and Archival Context Project (SNAC) and Virtual International Authority File (VIAF).

Anyway, nice to see things progressing!

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First Sale Doctrine Challenged by John Wiley & Sons

Wiley

Wiley

There is an interesting copyright case making its way through the U.S. federal courts. John Wiley and Sons is suing Supap Kirtsaeng, a Thai doctoral student who was importing foreign edition textbooks and selling them on eBay between 2007 and 2008. Wiley sued Kirtsaeng alleging copyright infringement under 17 U.S.C. § 501, trademark infringement under 15 U.S.C. § 1114(a), and unfair competition under New York state law. Wiley also sought a preliminary and permanent injunction under 17 U.S.C. § 502(a) and statutory damages under 17 U.S.C. § 504(c). Kirtsaeng argued that the first-sale doctrine – a copyright provision that allows the purchaser to transfer (i.e., sell, lend or give away) a particular lawfully made copy of the copyrighted work without permission – was a defense to copyright infringement.

The case went to trial and a jury found Kirtsaeng guilty of willful copyright infringement. The docket has a good explanation of how the jury deliberated:

At the end of the trial, the District Court charged the jury to determine whether Kirtsaeng had infringed the copyrights of each of eight works and whether any such infringements had been willful. The District Court explained that, under the statutory damages scheme found at 17 U.S.C. § 504(c), see note 10, ante, if the jury found that Kirtsaeng had infringed Wiley’s copyright, it could award no less than $750 and no more than $30,000 in damages for each infringed work.

The District Court identified two exceptions to this rule. First, the District Court instructed the jury that, if it found that Wiley had proved by a preponderance of the evidence that the infringement was willful, under the statutory scheme the jury had the option of awarding up to $150,000 in damages per infringed work. Second, if the jury found that Kirtsaeng had proved by a preponderance of the evidence “that he was not aware and had no reason to believe that his acts constituted an infringement of copyright,” the jury could choose to impose an award of statutory damages as low as $200 per infringed work. The jury ultimately found Kirtsaeng liable for willful copyright infringement of all eight works and imposed damages of $75,000 for each of the eight works.

Yikes. $600,000 in damages. Damages that were just affirmed by the Court of Appeals, 2nd Circuit. The ruling means that the first-sale doctrine only applies to works manufactured in the United States. Judge J. Garvan Murtha dissented, arguing that the ruling could allow companies to exert complete control over the resale of its products:

Even in the absence of a market allocation agreement between, for example, a publisher of the United States edition and a publisher of the British edition of the same work, each such publisher could make lawful copies. If the author of the work gave the exclusive United States distribution rights—enforceable under the Act—to the publisher of the United States edition and the exclusive British distribution rights to the publisher of the British edition, however, presumably only those made by the publisher of the United States edition would be ‘lawfully made under this title’ within the meaning of § 109(a). The first sale doctrine would not provide the publisher of the British edition who decided to sell in the American market with a defense to an action under § 602(a).

The first-sale doctrine has been part of U.S copyright law since the early 1900s so it is unfortunate to see it limited in such a drastic manner. And by the looks of the docket, Wiley’s counsel used some pretty dubious methods to get Kirtsaeng’s complete PayPal records – which included income from the sale of books by many other publishers – admitted as evidence. The Court had to remind the counsel that it “must be careful not to refer to these [unrelated] sales in any way as infringing sales, because that would be entirely improper.” Even so, it’s not hard to imagine a jury becoming comfortable leveraging $600,000 in damages for 8 books after it hears about 1.2 million in revenue for an unspecified number of books.

More:
Kenyon and Kenyon LLP – Does the Copyright Act’s First Sale Doctrine Permit Infringement Claims for Importing Genuine Works Made Outside the United States?

Library Journal – Court Rules First Sale Doctrine Only Applies to Works Manufactured in U.S.

Thomson Reuters News and Insight – Copyright Owners Win Broader Rights for Works Made Abroad

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