On Thu, Apr 23, 2009 at 6:05 PM, Jonathan Rochkind <rochkind_at_jhu.edu> wrote:
> Well, OCLC is just plain wrong there, if they're suggesting that. There
is nothing to stop me from manually adding an OCLC number to any record I
want. The Lexis page number case suggests to me that I almost certainly
have a legal right to do so in the US without OCLC's permission. (An OCLC
number, which is just an incremental number applied in order to records as
they are added to OCLC is _very_ much analagous to a page number, isn't
it?).
The Lexis case (West Publ’g Co. v. Mead Data Cent., Inc., 799 F.2d 1219,
1223 (8th Cir. 1986)<http://en.wikisource.org/wiki/West_Publishing_Co._v._Mead_Data_Central,_Inc.>went
the other way (holding that West's page numbers were copyrightable,
because West did not report every case, and were a reflection of that
selection process.
That case predated Feist, and could not have survived it, since the majority
opinion was based on sweat of the brow.
The case you are probably thinking of is Bender *(Matthew Bender & Co. v.
West Publ’g Co., 158 F.3d 693, 708 (2d Cir.
1998)<http://en.wikisource.org/wiki/Matthew_Bender_&_Co.,_Inc._v._West_Publishing_Co.>)
, which held there was insufficient creativity to warrant copyright
protection of West's star pagination, for reasons similar to the one you
gave.
"West concedes that the pagination of its volumes—i.e., the insertion of
page breaks and the assignment of page numbers—is determined by an automatic
computer program, and West does not seriously claim that there is anything
original or creative in that process."
Also, see footnote 9 for a line of argument that should strike many on the
list as familiar.
I am not a lawyer, nor did I stay at a Holiday Inn Express, so I am not even
vaguely qualified to speculate on the legal ramifications of the OCLC
announcement.
I do think that providing a high quality ILSaaS is *absolutely* the right
strategy for OCLC; along with ILLiad** it provides for a reliable cash
flow without depending on the existence of property rights in the data in
worldcat. However, it may be not be wise to do so without setting up very
high Chinese Walls separating that line business from the worldcat database,
or preferably spinning the activity off into a separate entity (does PICA
still exist?).
Not for profit corporations are still subject to anti-trust laws (see e.g
this recent article in the Journal of Law & Economics. Posner is second
author. http://www.journals.uchicago.edu/doi/abs/10.1086/589704 ); were an
antitrust suit to prevail it could entail loss of 501(c) status under Bob
Jones vs United
States<http://www.law.cornell.edu/supct/html/historics/USSC_CR_0461_0574_ZS.html>
.
The merger with RLG may have lessened the room for maneuver. The proposed
guidelines may not have been evaluated from that perspective; the choice of
forum and arbitration clauses were especially problematic.
It would not be a good thing if OCLC were to be damaged in this way. If one
of the private equity owned ILS Vendors runs into the credit wall, OCLC is
just about the only one with the resources to be able to step in and rescue
the customers; conversely, such a situation may prompt an action by
bottom-feeders - remember SCO?
oclc.com under Jay Jordan, oclc.org*** under Lorcan Dempsey.
What Would Fred Do?
Simon
* Cite my shiny metal ass.
** next generation: Artifact Exchange Network for Enhanced Information
Delivery?
*** oclc.unc.edu is also available
Received on Thu Apr 23 2009 - 20:48:38 EDT