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FOS Newsletter, 9/15/02  Peter Suber
 Sep 15, 2002 13:10 PDT 
      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

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_)

Please post your thoughts to the FOS Forum
(Anyone may read; only subscribers may post; subscription is free.)


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

* 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

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

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).

Please feel free to forward any issue of the newsletter to interested
colleagues. If you are reading a forwarded copy of this issue, you may
subscribe by signing up at the FOS home page.

FOS home page, general information, subscriptions, editorial position

FOS Newsletter, subscriptions, back issues

FOS News blog

FOS Discussion Forum, subscriptions, postings

FOS Conferences

Guide to the FOS Movement

Sources for the FOS Newsletter

Peter Suber

Copyright (c) 2002, Peter Suber

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