I Really Don’t Know

OCLC, Record Usage, Copyright, Contracts and the Law

FUD truck by John Markos on Flickr

NB: This is my own blog. The opinions I publish do not necessarily reflect those of my employer. I am not a lawyer, but I did ask James Grimmelmann for his thoughts.

Over on Metalogue, Karen Calhoun has been clarifying OCLC’s thinking behind its intention to change the usage policy for records sourced from WorldCat. It’s great to see OCLC communicating this stuff, albeit a tad late given the furore that had already ensued. The question still remains though, are they right to be doing what they are?

Firstly, in the interest of full disclosure, let me make it perfectly clear that I work for Talis. I enjoy working for Talis and I agree with Talis’s vision. I have to say that because Karen is clearly not happy with us:

OCLC has been severely criticized for its WorldCat data sharing policies and practices. Some of these criticisms have come from people or organizations that would benefit economically if they could freely replicate WorldCat.

OCLC believe that Talis is one of those organisations, and we are. There are others too, LibraryThing, Reddit, OpenLibrary, Amazon, Google. Potentially many libraries could benefit too.

This isn’t the first time I’ve talked about OCLC’s business model. I wrote an open letter to Karen Calhoun some time ago, talking about the issues of centralised control. The same concerns raise themselves again now. I feel there are several mis-conceptions in what Karen writes that I would like to offer a different perspective on.

First off, OCLC has no right to do this. That sounds all moral and indignant. I don’t mean it that way. What I mean is, they have literally no right in law - or at least only a very limited one.

Karen talks a lot about Creative Commons in her note, it’s apparent that they even considered using a Creative Commons license

And yes, while we considered simply adopting a Creative Commons license, we chose to retain an OCLC-specific policy to help us re-express well-established community practice from the Guidelines.

There is an important thing to know about CC. Applying a Creative Commons License to data is utterly worthless. It may indicate the intent of the publisher, but has absolutely no legal standing. This is because CC is a license scheme based on Copyright. Data is not protected by Copyright. The courts settled this in Feist Publications v. Rural Telephone Service.

This means that when Karen Coombs asks for several rights for the data:

1. Perpetual use - once I’ve downloaded something from OCLC I’ve for the right to use it forever period end of story. This promotes a bunch of things including the LOCKSS principle in the event something happens to OCLC
2. Right to share - records I’ve downloaded I’ve got the right to share with others
This means share in any fashion which the library sees fit, be it Z39.50 access, SRU/W, OAI, or transmission of records via other means
3. Right to migrate format - Eventually, libraries may stop using MARC or need to move records into a non-MARC system. So libraries need the right to transform their records

it is simply a matter of the members telling OCLC that’s how it’s gonna be. For those not under contract with OCLC - you have these rights already!

Therein lies the nub of OCLC’s problem. In Europe the database would be afforded legal protection simply by virtue of having taken effort or investment to create, the so called sui-generis right. US law does not have any such protection for databases. I know this because I was heavily involved in the development of the Open Data Commons PDDL and a real-life lawyer told me.

So, other legal remedies that might be used to enforce the policy could include a claim for misappropriation - reaping where one has not sown. This would be under state, rather than federal, law. Though NBA v. Motorola suggests that misappropriation may only apply if for some reason OCLC were unable to continue their service as a result. James Grimmelmann tells me

RS: If I understand correctly that would mean the only option left for enforcing restrictions on the use of the data would be contractual. Have I missed something obvious?

JG: I could see a claim for misappropriation under state law — OCLC has invested effort in creating WorldCat, and unauthorized use would amount to “reaping where one has not sown,” in the classic phrase from INS  v. AP.  I doubt, however, that such a claim would succeed, since misappropriation law is almost completely preempted by copyright.  Recent statements of misappropriation doctrine (e.g., NBA v. Motorola) suggest that it might remain available only where the plaintiff’s service couldn’t be provided at all if the defendant were allowed to do what it’s doing.  I don’t think that applies here.  So you’re right, it’s only contractual.

Without any solid legal basis on which to build a license directly, the policy falls back to being simply a contract - and with any contract you can decide if you wish to accept it or not. That, I suspect, is why OCLC wish to turn the existing guidelines into a binding contract.

So, OCLC members have the choice as to whether or not they accept the terms of the contract, but what about OpenLibrary? Some have suggested that this change could scupper that effort due to the viral nature of the reference to the usage policy in the records ultimately derived from WorldCat.

Nonsense. This is a truck load of FUD created around the new OCLC policy. Those talking about this possibility are right to be concerned, of course, as that may well be OCLC’s intent, but it doesn’t hold water. Given that the only enforcement of the policy is as a contract, it is only binding on those who are party to the contract. If OpenLibrary gets records from OCLC member libraries the presence of the policy statement does not create a contract, so OpenLibrary would not be considered party to the contract and not subject to enforcement of it. That is, if they haven’t signed a contract with OCLC this policy means nothing to them. They are under no legal obligation to adhere to it.

This is why OCLC are insisting that everyone has an upfront agreement with them. They know they need a contract. James Grimmelmann, who confirmed my interpretations of US Law for me said this in his reply this morning

JG: Let me add that it is possible for entities that get records from entities that get records from OCLC to be parties to OCLC’s contracts; it just requires that everyone involved be meticulous about making everyone else they deal with agree to the contract before giving them records. But as soon as some entities start passing along records without insisting on a signature up front, there are players in the system who aren’t bound, and OCLC has no contractual control over the records they get.

Jonathan Rochkind also concludes that OCLC’s focus on Copyright is bogus:

All this is to say, the law has changed quite a bit since 1982. If OCLC is counting on a copyright, they should probably have their legal counsel investigate. I’m not a lawyer, it doesn’t seem good to me–and even if they did have copyright, I can’t see how this would prevent people from taking sets of records anyway, as long as they didn’t take the whole database. But I’m still not a lawyer.

This is OCLC’s fear, that the WorldCat will get out of the bag.

The comparisons with other projects that use licenses such as CC or GFDL, and even open-source licenses are also entirely without merit.

To understand why we have to understand the philosophy behind the use of licenses. In OCLC’s case the intention is to restrict the usage of the data in order to prevent competing services from appearing. In the case of wikipedia and open-source projects the use of licenses is there to allow the community to fork the project in order to prevent monopoly ownership - i.e. to allow competing versions to appear. There are many versions of Linux, the community is better for that, the good ones thrive and the bad ones die. When a good one goes bad others rise up to take its place, starting from a point just before things went bad. If this is what OCLC want they must allow anyone to take the data, all of it, easily and create a competing service - under the same constraints, that the competing service must also make its data freely available. That’s what the ODC PDDL was designed for.

The reason this works in practice is that these are digital goods, in economic terms that means they are non-rival - if I give you a copy I still have my own copy, unlike a rival good where giving it to you would mean giving it up myself. OCLC has built a business model based on the notion that its data is a rival good, but the internet, cheap computing and a more mature understanding shows that to be broken.

Jonathan Rochkind also talk about a difference in intent in criticising OCLC’s comparison with Creative Commons:

But there remains one very big difference between the CC-BY-NC license you used as a model, and the actual policy. Your actual policy requires some recipients of sharing to enter into an agreement with OCLC (which OCLC can refuse to offer to a particular entity). The CC-BY-NC very explicitly and intentionally does NOT require this, and even _removes_ the ability of any sharers to require this.

This is a very big difference, as the entire purpose of the CC licenses is to avoid the possibility of someone requiring such a thing. So your policy may be like CC-BY-NC, while removing it’s very purpose.

Striving to prevent the creation of an alternative database is anti-competitive, reduces innovation and damages the member libraries in order to protect OCLC corp.

Their [OCLC's record usage guidelines] stated rationale for imposing conditions on libraries’ record sharing is that “member libraries have made a major investment in the OCLC Online Union Catalog and expect other member libraries, member networks and OCLC to take appropriate steps to protect the database.”

This makes no sense. The investment has been made now. The money is gone. What matters now is how much it costs libraries to continue to do business. Those costs would be reduced by making the data a commodity. Several centralised efforts have the potential to do just that, but the internet itself has that potential too, a potential OCLC has been working against for a long time. Their fight has taken the form of asking member libraries and software authors like Terry Reese not to upset the status quo by facilitating easy access to the Z39.50 network and now this change to the policy.

What underlies this is a lack of trust in the members. OCLC know that if an alternative emerged its member libraries would move based on merit, and OCLC clearly doesn’t believe it could compete on that level playing field. They are saying that they require a monopoly position in order to be viable.

However, what’s good for members and what’s good for OCLC are not one and the same thing. Members’ investment would be better protected by ensuring that the data is as promiscuously copied as possible. If members were to force OCLC to release the entire database under terms that ensure anyone who takes a copy must also make that copy available to others under the same terms then competition and market would be created. Competition and market are what drive innovation both in features and in cost reduction. In fact, it would create exactly the kind of market that has caused US legislators to refuse a database right, repeatedly. Think about it.

Above all, don’t be fooled that this data is anything but yours. The database is yours. All of yours.

If WorldCat were being made available in its entirety like this, it would be entirely reasonable to put clauses in to ensure any union catalogs taking the WorldCat data had to also publish their data reciprocally. That route leads us to a point where a truly global set of data becomes possible - where World(Cat) means world rather than predominantly affluent American libraries.

Surely OCLC, with its expertise in service provision, its understanding of how to analyse this kind of data, its standing in the community and not to forget its substantial existing network of libraries and librarians would continue to carve out a substantial and prestigious role for itself?

I’ve met plenty of folks from OCLC and they’re smart. They’ll come up with plenty of stuff worth the membership fee - it just shouldn’t be the data you already own.

Cryptography Challenge…

Cory Doctorow asked Bruce Schneier to give him a hand designing wedding rings. Not an obvious combination until you realise these are crypto rings…

There are two great discussions going on over at both blogs. Cory has asked his crowd to help design a cipher for his crypto wedding rings. While Bruce simply said Contest: Cory Doctorow’s Cipher Wheel Rings.

The discussion on both posts is worth reading. A mixture of things popping up about the similarity between the three rings and the Enigma machine as well as comments about Jefferson’s Wheel Cipher.

Like most things Cory does (or says) there’s an element of the slightly bizarre. The prize, a not to be sniffed-at signed copy of Little Brother.

The full set of photos are on Cory’s Flickr account, tagged weddingring.

Comparisons with the Enigma machine, I suspect, are bogus. While there is a visual similarity with the Enigma’s wheels the Enigma’s cipher was implemented in the electronics within the machine. The letters on the rotors simply enabling the correct starting positions to be selected. The Enigma machines perform a substitution cipher, but with the additional complexity that the substitution pattern changes for each letter through the message. I don’t see a way to do that with these rings. There may be rotor ciphers that could be implemented - I don’t know.

Jefferson’s cipher is a much closer match, a fully manual system consisting of 26 wheels with the alphabet scrambled differently on each one. Similar to the Enigma machine, sender and receiver had to have the order of the wheels synchronised and each letter would use a different substitution scheme, though Jefferson’s not as thorough as the Enigma.

As the rings cannot be altered and the alphabet is in order on all three wheels, any attempt that results in one character of cipher text for each character of plain text will be a simple substitution cipher. While it may take several complex steps to arrive at the cipher character it will only take an attacker one step to go back.

So, if you’re thinking about this problem seriously there are some things you have to decide on first…

1. Is the ring considered secret or not?

   This is isn’t an unreasonable assumption (putting aside that the details have been published online). It’s not that long ago that messages were transferred in plain text relying only on the emperor’s seal - made in wax with a ring only he carried.

2. Can you include another secret?

   There are suggestions on the blogs of using most recent blog posts, first pages of known books and other items as keys to drive the cipher. This then involves taking the character from the key and the character from the plaintext and some form of mathematical computation (shifting rings up or down, finding the next dot above or below, that kind of thing) to arrive at the cipher text character.

3. Is the algorithm secret?

   Knowing Bruce’s views on secrecy and security, even suggesting it is pure heresy. Considering the ring to be secret may be part of this, or may not. Some of the ideas I’ve had fall outside being encryption and really fall into the realm of a ’secret encoding’. But hey, something has to be secret and if it can’t be the ring, or the key, the maybe it has to be the algorithm.

Then, of course, you have to decide what to do with the rings. Any Cryptographic algorithm fulfils one of four basic purposes:

1. Symmetric Encryption

   These algorithms use the same key to encrypt and decrypt the text. They may use a single algorithm, like ROT13, or they may use a matched pair of algorithms, like many other substitution ciphers.

2. Asymmetric Encryption

   These algorithms use one key to encrypt and another to decrypt. The keys in this case are paired and are usually termed public and private keys. Typically you would use the recipients public key to encrypt and they would use their own private key to decrypt.

3. Non-Decryptable Hashes

   Used mostly for storing passwords (I can’t think of another use), these algorithms enable you to reliably convert plain text into a hash with little possibility of reversing the process. For passwords this means you store the hash of the password, then compare the hashed version of any sign-in attempt with the stored hash.

4. Signing

   Signing means adding some kind of addendum to the message that confirms you wrote it. Again this is done using public/private key pairs. You use your private key to create a hashed version of the message which others can then verify using your public key.

As well as thinking about all of that good stuff it might be worth looking for clues in the design of the rings. Bruce must have had something in mind when designing the rings.

Here are the obvious things to notice:

1. All three rings feature the alphabet in order.
2. The dot patterns are not random.
3. The dot pattern follow a 1, 2, 3 pattern.
4. The dot pattern is not unique (it repeats) when looking across the three rings.

Less obvious:

1. The S across three rings, looking at the dots above, makes dot, dot, dot while the O across the dots on top is three blanks (dash, dash, dash?) this made me go look at Morse Code again.

Yep, that’s all I spotted :-(

I’ll be chatting with a coupe of colleagues to see if we can put our heads together and also watching to see what the winner comes up with.

Lookybook

A friend emailed me a link to Lookybook a little while ago and I’ve been meaning to blog it for a while.

It’s an interesting experiment as there are a good number of brilliant picture books to read with young children online in all their glory. Not low-res scans or just the first two pages; the full books in great big hi-res, page turning flash.

You can, and I do, sit at the computer and read these with the kids. I suspect, though, that most parents will buy more of these books as they find more and more great books full of big pictures of lorries for the 3 year old boy in their life.

http://1984, de-referencing George Orwell

Winston sat at his usual table in the Chestnut Tree Cafe, it was unusually busy on this hot, sunny day. The waiter passed his table then returned with the gin bottle; filling his glass with the gin infused with cloves that the cafe was famous for.

The telescreen announced its imminent news of victory with a trumpet fare. It talked about further arrests of disidents, those who had commited crimes against Big Brother. Winston glanced across the room to Big Brother’s kindly smiling face looking down at him from the wall, a poster from floor to ceiling filling the cafe with his benevolent presence.

A commotion outside caused Winston to look out. The Thought Police marching past. They weren’t coming into the cafe today, nobody here of interest he guessed. They marched on.

The Brotherhood he now knew was real, but how could he really know how many others like him there were. O’Brien had told him he would only ever meet one or two others. He would do exactly as he was told. Follow orders. Was there really any hope of overthrowing The Party? He couldn’t see how, but that didn’t matter. Any act of rebellion however small felt great.

Maps of the war were now scrolling across the telescreen, they showed Oceania’s progress against Eurasia. Oceania was at war with Eurasia. Oceania had always been at war with Eurasia.

Winston suddenly became aware of another person beside him. Had his face showed sign of what he was thinking? Julia sat down to join him. A swift gesture across the face of the telescreen made it go blank, the narrative in his earpiece stopped. "You’re playing that game again, love?" asked Julia. "Yes, you know how good it is" he replied. Julia looked unimpressed. "It sends me to sleep, stops my brain working." she responded dismissively. "But it’s so clever" Winston defended. "it’s a view of what this world could have become!" His eyes gleaming, Winston pulled a small book out of his bag. The inscription on the title-page ran:

THE THEORY AND PRACTICE OF
OLIGARCHICAL COLLECTIVISM

by Emmanuel Goldstein

Winston began reading:

Chapter I

Ignorance is Strength

Throughout recorded time, and probably since the end of the Neolithic Age, there have been three kinds of people in the world, the High, the Middle, and the Low. They have been subdivided in many ways, they have borne countless different names, and their relative numbers, as well as their attitude towards one another, have varied from age to age: but the essential structure of society has never altered. Even after enormous upheavals and seemingly irrevocable changes, the same pattern has always reasserted itself, just as a gyroscope will always return to equilibrium, however far it is pushed one way or the other.

The aims of these groups are entirely irreconcilable…

Julia’s eyes had glazed over, they always did when he talked to her about the tenets behind Big Brother, the massively multi-player game sweeping the world. He stopped reading but it was several seconds before Julia noticed he had stopped. "It just doesn’t grab me, sorry" she apologised.

The waiter arrived, smiled and exchanged pleasantaries. "Sloe today Julia?" he asked. "Yes, please" she replied. The cafe was famous for its clove gin, but the sloe gin was also excellent. In total they had more than 70 flavoured gins and many other drinks besides. When not drinking the gin Winston would often try one of the ever-changing supply of world beers that flowed through the cafe, carefully savouring each one and keeping notes in his online review diary.

"Oh, but look at this", Julia’s face lit up as she remembered why she had come to find him. It was a heavy lump of glass, curved on one side, flat on the other, making almost a hemisphere. There was a peculiar softness, as of rainwater, in both the colour and the texture of the glass. At the heart of it, magnified by the curved surface, there was a strange, pink, convoluted object that recalled a rose or a sea anemone. "It’s from Mr Charrington’s," Julia went on, "he said I could bring it round to show you. I want to find out all about it."

She handed the glass to Winston who waved it across the small camera on the telescreen in front of him. The screen lit up as it took the code from the bottom of the glass and matched it with several photos of the object and a description. It was a paperweight, manufactured in Italy sometime in the early 1930s. The strange pink shape was Coral, not rare, but beautiful none the less.

The telescreen was changing, new pictures were arriving and more information appearing alongside the initial description as Goldstein (Winston had named his search agent after one of the Game’s main characters) trawled the semweb for more references. Within minutes he had a near complete history of the paperweight’s manufacture, who had owned it over the years and how it related to other more or less rare collections. It wasn’t really worth anything, semi-antiques like these were plentiful and Mr Charrington had a shop full of them, but it was just the kind of pretty thing that Julia loved to decorate their studio with. Winston smiled at her. "I love you. Go and buy it." he said.

As Julia left the cafe Winston heard the usual weekend commotion of the Thought Police returning. They were out-of-step now, not marching and there was a great deal of whooping and laughter. He sat back, glass in hand, to hear what had happened. In this mood they were bound to invade the cafe. He was right, around a dozen of them bounced up to the bar. Not one of them could have been more than 25 he thought to himself. Winston vaguely remembered a time in his childhood when people weren’t that interested in politics, but not now. Groups of Thought Police, young activists holding politicians and large corporations to account were a common sight. The group laughed and joked, congratulating each other on the day’s work.

Winston pieced together the lively fragments of chatter to conclude they had managed to secure yet another resignation of a corrupt politician. He didn’t catch the name or which of the many parties the poor chap had been part of. What he couldn’t understand was how any politician thought they could do anything but serve their constituents when the Thought Police, like everyone else, could query every vote, business partnership, gift and expense claim.

A broad smile broke across his face - maybe they thought it was all just a game.

Clay Shirky, Where does the time come from?

Data Portability

Data Portability is a great campaign, starting to gain some momentum, about ensuring the data you put into sites like facebook and linkedin is available for you to move between sites as you choose to move. Some major sites, including facebook have agreed to work with the group to develop standards for portable data, but still a long way to go.

So, dull bit done - there’s a host of videos going around promoting Data Portability…

Here are the best two (IMHO) so far…

Connect, Control, Share, Remix by Michael Pick

and Get Your Data Out! by (friend and colleague) Danny Ayers

All my favourite things

Open Content, The Library of Congress archive and Photography - I could spend hours here:

http://www.flickr.com/photos/library_of_congress/

ODC PDDL

More coverage of the Open Data Commons, PDDL (pronounced pee-diddle)

http://www.semanticweb.com/news/article.php/3720576

Nothing is Miscellaneous

A few months back I read David Weinberger’s Everything is Miscellaneous. After his contribution to The Cluetrain Manifesto back in 1999 my expectations were high. Mine higher than most, perhaps, as the book is dedicated “to the librarians” and I work for a company with several decades of heritage in library systems.

I already knew I liked David’s style of writing from Cluetrain, so I was glad to hear that same voice coming through loud and clear.

By chapter three we’re into library history; Dewey, Ranganathan, Carlyle and Panizzi all get a mention, but Dewey takes the brunt of the attack on geographies of knowledge. It would be easy to take Weinberger’s text as an attack on libraries specifically and the organization of knowledge generally, and many have, but it appears to me these are only used as examples of the limitations we face when organizing anything made of atoms.

And that really forms the nub of this book, that digital media can be organized differently for different purposes at different times - lifting a major limitation of the physical world. I wrote in a similar vein earlier this year when I tried to explain why virtual worlds suck. In that I tried to show the difference between approaches to search in Second Life and approaches to search on any web search engine.

This is touched on briefly in a Second Life book club review of EiM where it was said:

[18:23] Teofila Matova: chaos leads to order

[18:23] Stolvano Barbosa: yes

[18:23] Teofila Matova: lets think of the librarian with all the books on the floor

Who in their right mind would suggest all the books in the library sitting in one “miscellaneous” pile on the floor? Surely Weinberger is mad. Or evil? Maybe he’s trying to destroy knowledge!

But hold on there - a pile on the floor… isn’t that essentially what automated archives are? Large robot-managed warehouses like the National Library of Norway sort the books by size, paper type, frequency of access; anything that makes the storage facility more efficient rather than a map of human knowledge. Of course, where each document lives is noted and cross-referenced with title, author, subject and so on. ‘Where it lives’, like an address or a Resource Locator… If they were all the same they’d be Uniform Resource Locators or URLs.

That’s what Weinberger’s getting at, that things can have an address independent of any taxonomy. Not only that, but by giving something an address or identity that is not simply it’s position in a taxonomy then you can cross-reference the same items in several different taxonomies at the same time and add more as and when you need them.

Which brings me to where I take issue with everything being miscellaneous; to explain let me take a little detour. I’ve spent many years trying to learn what makes code (programming that is, Java, C++, you know the stuff) better. One of the things that I’ve concluded about programming in OO languages is that there are a few terms that smell bad - ‘utils’ is one of my favorites. ‘Utils’ almost always means ‘the things that don’t it in the hierarchy of my code’ and that usually means the hierarchy is wrong. The same goes for any taxonomy where things don’t really fit and end up tagged in that ‘miscellaneous’ section on the end.

The things that end up in the ‘misc’ section are the things that weren’t thought about or weren’t really cared about or weren’t really understood in the design of the structure of the knowledge; Dewey 297, Islam, Bahai and Babism - things that aren’t Christian… Their importance and differences from each other hidden by the understanding set like concrete in the classification.

But somebody always cares about those things that end up in ‘misc’, probably deeply and in a way that they could classify in detail. Take a friend of mine doing a PhD analyzing the differences in scholarly texts that have been cited a lot and those that have been only cited once. You should try finding a way to search for those scholarly texts that have been relegated to the bottom of the heap.

That is what the third order of order, as Weinberger coins it, allows us to do, for ourselves… Leading me to believe that the book should be called Nothing is Miscellaneous.

Technorati Tags: EiM, Everything is Miscellaneous, David Weinberger, Libraries, Semantic Web

Larry Lessig: Open For Business

In a classic Lawrence Lessig presentation, this time at TED, he explains why we must stop criminalizing our kids.

found via: Powell, Andy and Johnston, Pete: Strangling creativity

Technorati Tags: copyright, law, licensing, lawrencelessig, open-content, remixing