Tuesday, March 17, 2009

Value of Electronic Databases Is in Their Integrity

In an afterthought email exchange with me following the posting of her latest comments, co-objector Anita Bartholomew hit another bullseye that I'd like to run with:

The market value for a database is in the scope of offerings more than in any individual component. That's a large part of why the big box stores of Barnes & Noble attract more customers than the small local bookseller and Amazon attracts more than a Barnes & Noble store. Since the scope of the databases is in large part due to theft, shouldn't those stolen from, who are being asked to leave their property in the thieves' hands, share in the value of keeping it whole?

Anita's observation takes me back to the very beginning of the electronic rights struggle, 1994-95. At National Writers Union board meetings, we used to discuss how our individual and collective complaint letters to database companies often had the odd consequence of simple deletion from the database of the disputed works. This was usually done by the infringing companies without explanation, either to the rights holders or to information consumers. We mused aloud that this phenomenon was turning the databases into "Swiss cheese." We actually used that term. Years later, after the Supreme Court ruled in Tasini, print and electronic publishers started announcing that they were being "forced" to expunge precious data from "the historical record." In truth, they had been doing so surreptitiously for years, whenever someone called them on their illegal practice of stealing surreptitiously. Needless to add, LexisNexis and other database companies did not offer refunds or discounts to libraries or end users who were paying stiff fees -- some blanket-subscription-based, some time-based, some download-based -- for access to an "historical record" that was becoming "Swiss cheese."

Barbara Quint of Information Today wrote an insightful article about all this in 2001 under the headline "Stop the Trash Trucks -- A Tasini Case Damage Control Proposal." The link is http://newsbreaks.infotoday.com/nbReader.asp?ArticleId=17548.

Barbara did not know the entire history of "Swiss cheese" and Information Today later published my letter to the editor:

Ms. Quint is right to insist that the information community hold database aggregators' feet to the fire by demanding an accounting of deleted content. This, however, is not a new problem brought about by the latest round of litigation results. As long ago as 1994, I was part of a writers union campaign called "Operation Magazine Index," through which we confronted, among others, Information Access Company (now Gale Group). Our experience was that when authors, individually or collectively, questioned the offering of their works in for-profit products, the operator simply deleted those articles. Sometimes the person registering the complaint was so informed; however, users never were. Indeed, this was a source of some frustration for us, since our objective was to spur comprehensive negotiations, not to turn databases into undisclosed Swiss cheese. We overestimated the conscience of the putative keepers of the historical record when it came to maintaining its integrity.

In the wake of Tasini, information consumers need to know that writers are not the enemy. There was a new revenue stream from which only publishers profited, without the permission of the rightsholders. We thought that was wrong, and Ruth Bader Ginsburg, Antonin Scalia, and five other justices agreed. As the American Library Association recognized, there is ultimately an overall benefit to public access in giving individual creators, as well as large corporations, the right to exploit previously published works in new media. Far from feeling compelled to charge every kind of user for every bit and byte, we are now simply free to choose to give our stuff away in appropriate circumstances -- but from a foundation of dignity and respect.

Again: The value of a database consists, in part, in its integrity, its comprehensiveness. The settlement offers crumbs to a tiny percentage of the infringed who were well connected enough to get wind of the settlement and who, with narrow vision and flat feet, believe it is a good deal (certainly for them, and they apparently don't think it matters whether it's a good deal for everyone else). But the settlement does nothing but harm to the promise of new technology both to empower freelance creators and to broaden the scope of public access.


Post a Comment

<< Home