Author Archives: Krista Cox

ARL and Higher Education Groups Urge FCC to Protect Net Neutrality

*Cross-posted from ARL News*

The Association of Research Libraries (ARL) has joined with eight higher education associations in submitting comments, due today, July 18, 2017, to the US Federal Communications Commission (FCC), to support strong net neutrality rules. In 2015, the FCC set forth its Open Internet Order, which reclassified the Internet as a common carrier under Title II of the Communications Act and also relied on the FCC’s authority under Section 706 of the Telecommunications Act to provide a firm legal basis to protect net neutrality. The FCC, under new leadership, is now seeking to reverse or amend the 2015 order.

As both providers and consumers of content and services on the Internet, research libraries and their parent institutions have long relied on the open character of the global network, including non-discriminatory access. The 2015 rules assured that Internet providers would not be able to create “fast lanes”—designated for those willing and able to pay a premium—and “slow lanes” for everyone else. Specifically, the FCC laid out bright-line rules against blocking, throttling, and paid prioritization.

“Net neutrality is critical to equitable access to information,” said Mary Case, ARL president and university librarian and dean of libraries at the University of Illinois at Chicago. “Without strong rules to protect an open Internet, service providers could act as gatekeepers and place commercial interests above non-commercial expression. The FCC’s 2015 Open Internet Order sets forth strong, clear, and enforceable rules to protect net neutrality. The FCC should look beyond the quantitative cost-benefit analysis suggested in its Notice of Proposed Rulemaking and recognize the qualitative benefits libraries and higher education provide through access to an open and neutral Internet. There is no reason for the FCC to alter the current rules, which ensure that intellectual freedoms such as education, research, free speech, and innovation can continue to flourish.”

The comments emphasize the importance of net neutrality to libraries and higher education, and note that no changes to the 2015 Open Internet Order are necessary. The comments also stress that any action by the FCC regarding regulation must protect the key net neutrality principles endorsed by library and higher education groups to ensure that information can continue to flow unimpeded.

Battle for the Net: Day of Action to Save Net Neutrality

Today, July 12, 2017, ARL is joining thousands of websites and tens of thousands of individuals in participating in an Internet-wide Day of Action to Save Net Neutrality. This day of action is designed to draw attention to the importance of net neutrality and the current threats an open Internet faces due to new leadership at the Federal Communications Commission (FCC).

The strong net neutrality rules we currently have in place, set forth in the FCC’s 2015 Open Internet Order, were fought for and won by millions of people and organizations who took action by submitting comments to the FCC in support of strong rules protecting the Internet. ARL joined with other library and higher education organizations to submit principles, comments and reply comments pointing out the importance of net neutrality to our institutions and users. The FCC’s 2015 Open Internet Order provided clear rules, grounded in a strong legal basis, when it reclassified

All Internet users should be concerned about the FCC’s efforts to roll back net neutrality. Without strong rules to preserve an open Internet, service providers will have the ability and incentive to block, throttle, or engage in paid prioritization, drastically changing the character of the Internet from an even playing field to one in which only the wealthy can afford to have their content prioritized. Strong net neutrality rules are essential to protect online free speech and innovation.

You can take action by contacting the FCC and Congress, which can be done easily at Battle for the Net. The Internet should not be divided into “fast lanes” and “slow lanes.” It should remain open, so that all voices and content may have equal footing, rather than elevating only the voices of those who have the means and are willing to pay a premium.

Today’s Day of Action will harness the power of the Internet to make sure that ordinary Internet users can make their voices heard and a wide range of organizations will be participating, from library groups such as ALA and ARL, to civil society groups like Demand Progress and EFF, to social media sites like Twitter and Snapchat, to video hosting or streaming sites like Netflix and Vimeo, to journalism sites such as The Nation and Daily Kos, to companies like Amazon and Dropbox. A full list of participants is available on the Day of Action page.

Celebrating 20 Years of Internet Free Speech

Today marks the 20th anniversary of the Supreme Court of the United States’ decision in Reno v. ACLU, a case that determined that certain provisions of the Communication Decency Act (CDA) – which sought to govern speech online – violated the right to free speech. This decision was a landmark decision, the Court’s first about the Internet and applied the same freedom of speech rules for print to speech on the Internet (both of which are more open than TV or radio broadcasts).

The CDA was designed to protect children from “obscene or indecent” content. However, because of the breadth and vagueness of the provisions, the Court found that the CDA could also suppress speech to adults:

We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.

The Court found that less restrictive alternatives could be used to achieve the same goal of reducing explicit content to children. The CDA, however, resulted in “an unnecessarily broad suppression of speech addressed to adults.”

Reno v. ACLU is a decision that gave us the Internet as we know it today. One that is free and open, a modern town square. Celebrating this landmark ruling brings to mind a number of related issues that are at the forefront of discussions today. While Reno v. ACLU gave us a ruling that established that freedom of speech applies online, we are still fighting for strong net neutrality rules that keeps the Internet open to all and does not favor one speech over another. While the Supreme Court’s Reno v. ACLU decision applied the same First Amendment protections to online speech as print, we are still fighting for reforms to the Electronic Communication Privacy Act to ensure that the same Fourth Amendment protections that apply to print apply to online communications.

Let’s celebrate 20 years of Reno v. ACLU, but remember that there is still work to be done to ensure that Constitutional rights apply with the same force in the digital world as it did in an analog one.

Updates on Court Cases on President Trump’s Travel Ban

Since the last ARL Policy Notes update on the Court Cases on Trump’s Travel Ban (March 16, 2017), two federal courts of appeals, the Ninth Circuit and the Fourth Circuit, have upheld the district court opinions enjoining enforcement of the Executive Order suspending entry into the United States for nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen (other than lawful permanent residents, visa holders or dual nationals). The district courts in Hawaii and Maryland found that the bans were unlawful because they were issued in order to disfavor a particular religion, pointing to Trump’s previous statements asserting his intent to issue a “Muslim ban.”

On May 24, 2017, the Fourth Circuit issued its opinion and, relying on previous statements made by Trump and his administration, found that the ban violated the Establishment Clause of the Constitution by disfavoring Muslims.  Whether the court would look to the extrinsic evidence of campaign and other statements as evidence of the Executive Order’s purpose was an open question; the Fourth Circuit unquestionably determines that they should in this particular case because there is a “substantial, specific connection between it and the challenged government action.”

In its decision upholding the injunction, the Fourth Circuit’s majority noted, “The evidence in the record, viewed from the standpoint of the reasonable observer, creates a compelling case that EO-2’s primary purpose is religious,” citing the many statements made by Trump as candidate and statements by his associates made around the time the executive orders were issued. The majority concludes:

These statements, taken together, provide direct, specific evidence of what motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the United States. The statements also reveal President Trump’s intended means of effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly. And after courts enjoined EO-1, the statements show how President Trump attempted to preserve its core mission: by issuing EO-2—a “watered down” version with “the same basic policy outcomes.” J.A. 339. These statements are the exact type of “readily discoverable fact[s]” that we use in determining a government action’s primary purpose. McCreary, 545 U.S. at 862. They are explicit statements of purpose and are attributable either to President Trump directly or to his advisors. We need not probe anyone’s heart of hearts to discover the purpose of EO-2, for President Trump and his aides have explained it on numerous occasions and in no uncertain terms. See Glassroth v. Moore, 335 F.3d 1282, 1296 (11th Cir. 2003) . . . EO-2 cannot be read in isolation from the statements of planning and purpose that accompanied it, particularly in light of the sheer number of statements, their nearly singular source, and the close connection they draw between the proposed Muslim ban and EO-2 itself.

The Fourth Circuit similarly rejects the Administration’s argument that the Executive Order is warranted on national security grounds:

And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.

Ultimately, the court concludes that because of the statements made leading up to the issuance of the two executive orders:

EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it. In light of this, we find that the reasonable observer would likely conclude that EO-2’s primary purpose is to exclude persons from the United States on the basis of their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in violation of the Establishment Clause.22 Accordingly, we hold that the district court did not err in concluding that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim.

The Fourth Circuit noted that while courts generally try to avoid deciding a case based on constitutional grounds if it can be decided on statutory grounds, “the district court’s constitutional ruling was necessary to its decision, and review of that ruling is necessary to ours.”  Three judges dissented.

By contrast, while the Ninth Circuit reached the same end result when it released its opinion on June 12, 2017 — upholding a lower court’s decision to enjoin the enforcement of the travel ban — it explicitly declined to decide the case on constitutional grounds. Instead, the Ninth Circuit focused on a different legal basis for upholding the injunction: whether the Executive Order was valid under the Immigration and Nationality Act (INA).  The Ninth Circuit notes that courts should not issue “unnecessary constitutional rulings” and “we think it appropriate to turn first to the INA claim . . . we conclude that the Plaintiffs have shown a likelihood of success on the merits of that claim and that the district court’s preliminary injunction order can be affirmed in large part based on statutory grounds . . . we need not, and do not, reach the Establishment Clause claim to resolve this appeal.”  The decision by the Ninth Circuit was an unsigned, unanimous (per curiam) opinion.

The Ninth Circuit examines the INA and what powers Congress has delegated to the President.  The court notes that Section 1182(f) gives the President “broad authority to suspend the entry of aliens or classes of aliens” but “requires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States.”  The opinion concludes that President Trump did not make sufficient findings, as required by the INA, that entry of nationals of these six designated countries (as well as entry of all refugees  in a separate section) “would be detrimental to the interests of the United States.”

Additionally, the Ninth Circuit points out that Congress does not permit nationality-based discrimination under the INA and:

We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas.  If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of [Section] 1152(a)(1)(A) . . . the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States.  Issuance of visas will automatically stop for those who are banned based on nationality.  Yet Congress could not have used “more explicit language” in “unambiguously direct[ing] that no nationality-based discrimination shall occur.”

The Ninth Circuit rejects the Government’s argument that the President could validly bar entry of individuals from the six designated countries because Section 1152(a)(1)(A) applies to the issuance of visas, noting “Under the Government’s argument, the President could circumvent the limitations . . . by permitting the issuance of visas to nationals of the six designated countries, but then deny them entry.  Congress could not have intended to permit the President to flout [Section] 1152(a) so easily.”  Additionally, quoting the brief of amici technology companies, the Ninth Circuit points out, “‘Congress could not have intended to prohibit discrimination at the embassy, but permit it at the airport gate.'”

In an interesting footnote, the Ninth Circuit also suggests that President Trump’s Twitter feed is an appropriate means to determine the purpose and rationale of the Executive Order.  Footnote 14 provides:

Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s “travel ban.”  See Donald J. Trump (@realDonaldTrump), Twitter (June 5, 2017, 6:20PM), https://twitter.com/realDonaldTrump/status/871899511525961728 (“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”) (emphasis in original); see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37PM), http://www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/ (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”). We take judicial notice of President Trump’s statement as the veracity of this statement “can be accurately and readily determined from sources whose accuracy cannot reasonably be quested.” Fed. R. Evid. 201(b)(2).

It should be noted that in the various lawsuits regarding both the initial Executive Order and second Executive Order, often brought (in part) by state governments, standing was found for the states based on harms asserted by state universities.  The courts have acknowledged that colleges and universities have students, faculty, researchers, and staff who would be impacted by the executive orders.

Thirty-one colleges and universities — Boston University, Brandeis, Brown, Bucknell, Carnegie Mellon, Case Western, Columbia, Cornell, Dartmouth, Duke, Emory, George Washington, Georgetown, Harvard, Johns Hopkins, MIT, Middlebury, Northeastern, Northwestern, Princeton, Rice, Stanford, Tufts, University of Chicago, University of Michigan, University of Pennsylvania, University of Southern California, Vanderbilt, Washington University, Worcester Polytechnic Institute and Yale — filed amicus briefs in the Fourth and Ninth Circuits. The college and university amici note their interests:

Each amicus has a global mission and benefits from the contributions of diverse students, faculty, staff, and scholars from around the world.  Because amici seek to educate future world leaders, attract the world’s best scholars, faculty, and students, and work across international borders, they rely on their ability to welcome international students, faculty, and scholars into their communities. In light of their educational missions, amici have a strong interest in ensuring that individuals from around the globe can continue to enter the United States and share their unique skills and perspectives.

College and university amici point out that they have numerous students, faculty and scholars from countries outside the United States.  It provides data points from some of the amici.  For example, international students made up 16% of Columbia’s undergraduate population and 38.7% of its graduate population. Duke’s international students made up 10% of its undergraduate population and 47% of its graduate population. Rice’s figures were 12% and 39.5%, respectively.  The brief notes that 30% of its faculty appointees are international, and 50% of its academic professionals (including librarians, professional researchers, specialists, and postdoctoral fellows) and 50% of its visiting faculty and researchers are international. More than 40% of MIT’s faculty is international, while 10% of Yale’s faculty is international and 65% of its postdoctoral researchers are international.

Specifically, the brief also points to its international students, faculty and scholars from the six countries affected by the Executive Order:

For example, Princeton has more than 50 students and employees from the six affected countries, and its graduate school received approximately 150 applications for fall 2017 alone (and more than 700 applications in the past five years) from students from those nations. Brown has more than 20 students and scholars from the countries affected by the Order. Penn has three undergraduate students, 32 graduate and professional students, and two students admitted for the fall of 2017 from the countries covered by the Order. The University of Chicago has 23 students from Iran, as well as one student from Syria and a recent graduate from Syria who is employed under Optional Practical Training and University sponsorship. Northwestern is home to 45 students and 22 scholars from Iran, as well as two students from Syria, one from Sudan, and one from Yemen. Rice has 44 students and scholars from Iran alone. Carnegie Mellon has 31 students and 10 faculty and scholars from the six affected countries at its U.S. locations. And Duke currently has 37 individuals—enrolled as students or employed as postdoctoral fellows or faculty—from the countries affected by the Order. Harvard University counts 45 students and 63 scholars present on nonimmigrant visas from the six countries named in the Order, along with 77 dependents from those countries, and has admitted 23 students from the six countries for the fall of 2017. MIT counts 56 degree and non-degree students from the six countries identified in the Order. These are just a few of the universities where students, faculty, and scholars from the six affected countries make invaluable contributions to amici’s communities.

The brief appoints to great benefits international diversity provides to college campuses, “promot[ing] the free exchange of ideas, encouraging individuals to consider issues from different perspectives and giving students and faculty a greater understanding of our global, pluralistic society.”  It cites the Supreme Court’s decision in Fisher v. University of Texas, which “held that universities have a compelling interest in obtaining the ‘educational benefits that flow from student body diversity.”  

Additionally, the brief notes that enrollment and employment of international individuals adds great value to the United States.  Amici point to an estimate that “international students directly contributed $32.8 billion to the United States economy and supported or contributed to the creation of 400,000 American jobs in the 2015-16 academic year.” Another study “found that more than one third of United States innovators were born outside the country , and another ten percent have at least one foreign-born parent.”

The brief also points to the great achievements, including by those from the six designated countries:

The benefits from international students, faculty, and scholars at American universities are not just economic. As noted above, these individuals make significant discoveries and contributions in their fields. Since 2000, forty percent of all American Nobel prize winners in Chemistry, Medicine, and Physics have been immigrants—and in 2016, all six American winners of the Nobel Prize in economics and scientific fields were immigrants. These awards “represent great individual achievement but also reflect the state of research, openness and scientific advancement within [American] society.” Amici have seen these successes up close. For example, in 2014, Maryam Mirzakhani was the first woman to win the Fields Medal, known as the “Nobel Prize of Mathematics.” Mirzakhani grew up in Iran before earning her Ph.D. at Harvard and becoming a professor at Princeton and then Stanford. Professor Muawia Barazangi came to the United States from Syria for graduate study after earning his undergraduate degree from the University of Damascus; he earned a Ph.D. from Columbia before joining the faculty at Cornell, where he became a United States citizen and had a long and distinguished research and teaching career in the field of Earth Sciences. Syrian-born Dina Katabi, a professor at MIT, came to the United States for graduate study at MIT, and has since won a Macarthur “Genius” grant for her work on improving wireless network efficiency and security. Carnegie Mellon’s current President, Subra Suresh, is an immigrant (as was its founder, Andrew Carnegie); President Suresh came to the United States “at age 21 with a partially filled suitcase, less than $100 in cash, and a one-way airplane ticket purchased with a loan.” President Suresh went on to study at several United States universities, to join the faculty at Brown and the Massachusetts Institute of Technology, and, before joining Carnegie Mellon, to be nominated by the President and unanimously confirmed by the Senate as the Director of the National Science Foundation. (citations omitted)

Other distinguished alumni or former faculty and researchers “return to their home countries with a deeper understanding of and appreciation for the United States and its values . . . [or] become leaders in their home countries.”

The brief states that the Executive Order harms amici’s students, faculty and scholars because it “divides current students and their families, impairs the ability of American universities to draw the finest international talent, and inhibits the free exchange of ideas.” In addition to harming prospective and current students, faculty and researchers, the Executive Order

will impede successful academic collaboration in the United States.  American universities host thousands of conferences and symposia each year.  These academic meetings are incubators for innovation and thrive on the free flow of information and ideas . . . international universities have observed that the Executive Order and its predecessor will impede collaborative partnerships with American Universities.  And these effects are already being felt. For example, the University of Pennsylvania had planned to invite three Iranian human rights activists to a conference in March, but with the Executive Order in effect, their participation would be barred. Similarly, a faculty member at Dartmouth planning a conference for next fall has expressed concern that participants may not be able or willing to travel to the United States, and one keynote speaker has wondered whether it “sends the wrong message” to attend a conference in the United States at this time. Participants in a conference at the Harvard Center for Middle Eastern Studies are voluntarily withdrawing due to current United States immigration policies or perceptions thereof. The Sharmin & Bijan Mossavar Rahmani Center for Iran and Persian Gulf Studies at Princeton expressly aims to advance understanding of Iran and the Persian Gulf; if the Center cannot invite Iranian guest speakers, the Center obviously will be impeded in serving its mission.

What is more, faculty members from around the world already have called for a boycott of academic conferences in the United States in response to the Executive Order and its predecessor. A petition circulating online has drawn thousands of signatures from scholars in the United States and abroad pledging not to attend international conferences in the United States while the travel ban persists; it continues to garner new signatures under the revised Executive Order. Thus, the Executive Order threatens collaboration well beyond scholars from and institutions in the six affected countries.

The Trump Administration has already asked the Supreme Court to review the case. Should the Supreme Court agree to hear the case (and there is no indication thus far whether it will so), it would likely not hear oral arguments until after the fall term begins in October.

Drinking our own champagne: a toast to the success of LISSA!

*This is a guest blog post by Judy Ruttenberg,Program Director at the Association of Research Libraries and the co-director of SHARE. She serves on the SocArXiv Steering Committee and the OSF Preprints Advisory Board*

In early May, a group of information professionals and leaders announced the launch of the LIS Scholarship Archive, or LISSA. Co-directed by April Hathcock and Vicky Steeves (NYU Libraries), LISSA joins a growing list of scholarly communities building open “preprint” services in partnership with the Center for Open Science (COS) and using COS’s flagship product, the Open Science Framework (OSF), as a platform. LISSA’s mission is more expansive than open preprint publishing, however. It acknowledges that LIS professionals produce a wide range of scholarly materials worthy of preservation, open dissemination, and community evaluation. Here’s where the OSF is a terrific platform: when a paper is deposited in an OSF Preprints service, an OSF project is automatically created, with all the collaborative tools, versioning, storage, file-rendering, and other features supporting the scholarly life cycle.

That LISSA enters an active space—including a spate of arXiv descendants in social science, psychology, engineering, agriculture, paleontology and more—doesn’t diminish the unique opportunity that the library and archives community now has to “drink our own champagne” and embrace rapid, open publication, and retool tenure and promotion processes in our own organizations so that they recognize open scholarship deposited in LISSA.

Tenure and promotion committees within academic libraries will doubtless ask the same questions our colleagues throughout academia have asked us as librarians have advocated for open access: What is the role of peer evaluation and review in an OA model? How will I know the work is good work? What new metrics can I use to understand the impact of non-traditional publications? With the groundswell of interest in preprints across many disciplines, and an open source, public goods technology partner (COS) building the infrastructure, we in LIS organizations can work with LISSA (in parallel with other disciplines and services) to participate in building new, mission-aligned editorial and review processes that support this public good.

Having created a basic service—OSF Preprints—and its hosted, branded communities (SocArXiv, PsyArXiv, etc.), COS is now working on the critical features of moderation and evaluation, or peer review. You can see their public requirements and roadmap on the OSF Preprints page. To see this community infrastructure catch up to our policy and advocacy for open scholarship is incredibly exciting, and I hope academic libraries as individuals and as organizations see both opportunity in, and responsibility for, LISSA’s success by working through the hard issues of the moderation and evaluation of our own work.

So, a toast to LISSA! If you need a reviewer, you can find me at judy@arl.org.

Fair Use Industries Contribute $2.8 Trillion to U.S. Economy

The Computer and Communications Industry Association (CCIA) released an updated report on Fair Use in U.S. Economy: Economic Contribution of Industries Relying on Fair Use. The report notes that fair use is vital to a number of industries and contributes significantly to the U.S. economy — $2.8 trillion to the GDP.

Examples of fair use industries include, for example, manufacturers of consumer devices that allow individual copying and recording (such as DVRs), educational institutions, software developers, and Internet search and web hosting providers. These industries have seen dramatic growth in the digital age and “grew at a faster pace than the overall economy.”

In addition to the significant value add to the GDP, fair use industries also employed 18 million workers by 2014, representing 1 in 8 US workers. Additionally, “from 2010 to 2014, the labor productivity of U.S. fair use industries increased by 3.2 percent annually to approximately $155,000 per worker.” Exports rose by 21 percent in that same period to $368 billion in 2014 and “[t]he fair use economy has become a defining aspect of the U.S. trade portfolio.”

In addition to surveying these quantifiable contributions to the U.S. economy, the report explains the importance of fair use to these industries. The full report can be accessed here.

Indeed, fair use is an essential limitation in copyright law, contributing to a variety of purposes including supporting the U.S. economy, education, learning, and the creation of new works. For more on fair use, check out these ARL infographics:

Impression Products v. Lexmark International

On May 30, 2017, the Supreme Court of the United States issued its opinion in Impression Products v. Lexmark International, a case involving patent exhaustion. By an 7-1 margin, the Court found that a patent holder cannot enforce contractual restrictions on downstream sales through a patent infringement case and that international exhaustion applies to patents, just as the Court confirmed international exhaustion to apply to copyright in Kirtsaeng v. Wiley.

Lexmark essentially tried to restrict the refill of its cartridges by third parties by selling cartridges that restricted further use or resale. Lexmark then tried to enforce these restrictions through patent infringement cases against the downstream purchasers/third party resellers. The Court ultimately found that while Lexmark could potentially bring a breach of contract case against the initial purchasers for violating these restrictions, it could not bring a patent infringement suit to assert these claims. Relying on long-standing precedent, the majority opinion (authored by Chief Justice Roberts) notes “even when a patentee sells an item under an express restriction, the patentee does not retain patent rights in that product.”

Additionally, Lexmark asserted that exhaustion did not apply to cartridges sold abroad. The Court “conclude[s] that a patentee’s decision to sell a product exhausts all of its patent rights in that item, regardless of any restrictions the patentee purports to impose or the location of the sale.” The Court notes that the question of the first sale doctrine came up in the context of copyright in Kirtsaeng v. John Wiley & Sons, which ruled that the first sale of a copyrighted product exhausts the rights whether made in the United States or abroad. The majority opinion also points out that while differential pricing may occur, this fact has no bearing on patent exhaustion: “The patentee may not be able to command the same amount for its products abroad as it does in the United States.  But the Patent Act does not guarantee a particular price, much less the price from selling to American consumers.”

One of the more interesting passages in the majority’s opinion is an illustration on the dangers that would occur without exhaustion:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is compelling given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

Ultimately, exhaustion of copyright and patent rights serves a critical purpose in ensuring that purchasers can freely repair, re-sell, and lend legitimately purchased items just as they would for goods that are not encumbered by intellectual property rights.

ICYMI: New Advocacy and Public Policy Update

On May 19, 2017, ARL released its latest Advocacy and Public Policy Update. The topics covered in this update include various copyright issues (Register of Copyrights bill, Copyright Office study on moral rights, Copyright Office rulemaking on modernizing copyright recordation, and numerous amicus briefs filed), LSU v. Elsevier, appropriations, access to and preservation of government data, net neutrality, developments on trade agreements, and issues related to immigration and border control.  The full update is available here.

 

ARL Joins Higher Education and Library Groups to Oppose Changes to Net Neutrality Rules

On May 18, 2017, the FCC voted 2-1 to move forward with its notice of proposed rulemaking to roll back net neutrality protections that were set forth in the agency’s 2015 Open Internet Order. The FCC appears to want to reverse course on Title II reclassification, which provided the strong legal basis for the no blocking, no throttling and no paid prioritization rules, and potentially give enforcement oversight to the Federal Trade Commission (FTC) instead. ARL joined higher education and library groups in issuing the following statement:

May 18, 2017

No Changes to Net Neutrality Law Necessary, say Higher Ed and Library Groups

Since the passage of the FCC’s 2015 Open Internet Order, internet users have benefited from strong and enforceable net neutrality policies, which are essential to protecting freedom of speech, educational achievement, and economic growth for all Americans. Today’s vote puts those protections in jeopardy.

Libraries and institutions of higher education are leaders in maximizing the potential of the Internet for research, education, teaching and learning, and the public good.  In the modern era, a free and open internet is essential to our public missions. The current net neutrality rules – no blocking, no throttling, and no paid prioritization, backed by a general conduct standard to ensure net neutrality adapts as the Internet evolves – generated unprecedented public support, and the validity of both the rules and the process that produced them has been affirmed by the DC Circuit Court.

Given all these factors, we believe no changes to the FCC’s 2015 Open Internet Order are necessary.  We urge the Commission to rescind the NPRM approved today and work with all stakeholders to enhance flexibility and innovation within the existing framework. Application of the rules to this point has demonstrated that the Commission can manage the regulatory environment for Internet access without undermining the sound, legal basis for network neutrality.

Should the FCC continue down the path proposed in the NPRM, however, the higher education and library communities would again draw the Commission’s attention to the network neutrality principles for which we have consistently advocated. We believe the Commission can and should frame any efforts to support an open Internet around these principles, and we will work through the rulemaking process to sustain strong network neutrality rules based on them.

We look forward to working with the FCC on ensuring that the Internet remains open.

The organizations endorsing this statement are:

American Association of Community Colleges (AACC)

American Association of State Colleges and Universities (AASCU)

American Council on Education (ACE)

American Library Association (ALA)

Association of American Universities (AAU)

Association of College & Research Libraries (ACRL)

Association of Public and Land-grant Universities (APLU)

Association of Research Libraries (ARL)

Chief Officers of State Library Agencies (COSLA)

Council of Independent Colleges

EDUCAUSE

National Association of College and University Business Officers (NACUBO)

Louisiana State University Files Suit Against Elsevier; Elsevier Has Not Accepted Service

On February 27, 2017, Louisiana State University (LSU) filed a lawsuit against international science publisher Elsevier after the publisher breached its contract and refused to allow LSU’s veterinarian school faculty and students to access Elsevier content licensed by LSU’s Libraries. ARL’s press release is available here.

Background

LSU currently holds a license with Elsevier to cover its entire Baton Rouge campus. LSU’s veterinary school, which is located on main campus of LSU in Baton Rouge, Louisiana, previously held its own license with Elsevier. Upon the expiration of the veterinary school’s license with Elsevier, the veterinary school users continued resources licensed by LSU Libraries. The LSU Libraries’ license (attached as an exhibit to the end of the complaint) unequivocally covers its entire Baton Rouge campus, including the veterinary school.

Despite the fact that LSU Libraries license covers IP ranges specifically covering the veterinary school, Elsevier blocked access to users at the veterinary school. Upon discovery, LSU contacted Elsevier on October 11, 2016 to request reactivation of the IP ranges for the veterinary school. Elsevier unblocked those IP addresses, but then in January again blocked access for users at the veterinary school. Elsevier refused to respond to LSU’s written requests to reactivate these IP addresses.

Additionally, when LSU Libraries made a request to license 19 additional veterinary titles from Elsevier, the publisher initially responded that it would cost an additional $35,000 to add these titles. LSU Libraries accepted this price and requested an invoice only to then find Elsevier refusing to sell these titles to them.

Although LSU requested Elsevier to restore access to the veterinary school, Elsevier failed to respond until nearly six weeks later and only after LSU filed a lawsuit for breach of contract. Ultimately, Elsevier has refused to restore access for those in the veterinary school. Additionally, Elsevier has not accepted service of the lawsuit, which was filed in the Nineteenth Judicial District Court, Parish of East Baton Rouge, Louisiana, and for which service of process was attempted at Elsevier’s New York headquarters. As a result, LSU is now attempting to effect service of process at Elsevier’s headquarters in Amsterdam through the Hague Service Convention.

On April 22, 2017 Elsevier proposed that LSU “add a minimum of $170,000 of additional 2017 subscriptions to their existing contract” and “increase the price of Freedom Collection by $30,000 for the 2017 subscription period.” This amount represents an incredible increase in cost to LSU, and would not even cover the full 2017 calendar year.

Here’s my breakdown and analysis of what’s happened so far.

Elsevier’s Actions Prevent LSU from Exercising Sound Financial Stewardship of Scarce Public Resources

In essence, in an effort to exercise sound financial stewardship of public resources, LSU has been punished through Elsevier’s refusal to honor its contract. Elsevier’s actions in this case, from its blocking the IP ranges for the veterinary school to its failure to accept service at its New York office of the lawsuit to its outrageous demands that LSU Libraries pay an additional $200,000, demonstrate the publisher’s bad faith.

As a result of this dispute, Elsevier apparently wants LSU to add $170,000 of journals that the university does not need or want, a complete waste of scarce state dollars. Elsevier is holding hostage access to the veterinary school community in an effort to extort more money from a state institution. Keep in mind that LSU is already paying $1.5 million (and rising) to Elsevier.

All LSU is trying to do in the present case is ensure that it is not unnecessarily duplicating subscriptions for its campus and using state resources in a responsible manner. It is disappointing that Elsevier would respond to its own breach of contract by demanding more money from a public institution.

As summarized in LSU’s complaint:

Elsevier is well aware that LSU, like other universities, is heavily reliant upon the various types of research and educational content for which Elsevier enjoys monopolistic market powers and Elsevier is unfairly abusing its leverage to coerce LSU into paying additional and unnecessary subscription fees for research and educational content that LSU has already contracted for.

Elsevier Refuses to Honor The Plain Language of Its Existing Contract with LSU

The most obvious harm in the case comes from Elsevier’s refusal to honor its contract with LSU by blocking access to the veterinary school. Although the faculty, staff and students of the veterinary school had previously been able to access content licensed by LSU Libraries and such access was expressly covered under the IP ranges contracted for, Elsevier has denied access to these users.

Once again, Elsevier is using its monopoly power—LSU can only get the titles owned by Elsevier from Elsevier itself—to try to extract more money out of LSU. Elsevier is hoping that by refusing to honor its contract, it will be able to pressure LSU to renegotiate its current contract and pay even more money—more than the $1.5 million dollars the university pays each year to the publisher.

Elsevier Reneges on Its Contract with LSU for Additional Titles

While the major portion of the complaint involves Elsevier’s blocking of the IP ranges for the veterinary school and thus breaching its existing contract with LSU, the publisher also refused to honor the negotiations with respect to nineteen additional titles. When LSU inquired about these additional titles, Elsevier provided a quote. LSU confirmed acceptance of these terms and requested an invoice. Elsevier then replied “Thank you for these new title additions.” However, Elsevier subsequently refused to honor this agreement.

Every first-year law student takes contract law and the very first lesson is that an offer plus acceptance of that offer (plus consideration, such as money, to differentiate it from a gift) results in a valid contract. Here, Elsevier made an offer to add the requested titles in exchange for payment by LSU of $35,000. LSU expressly accepted. Elsevier even acknowledged receipt of acceptance. However, like its current contract with LSU, Elsevier has breached its own contract by now reneging and refusing to invoice the institution and provide the promised content.

Offer + acceptance (and consideration) = valid contract. Except, apparently, when you’re Elsevier. 

Elsevier’s Fails to Accept Service of the Lawsuit

Perhaps the craziest part of the entire story—though there are many deeply troubling actions by Elsevier—is the fact that Elsevier has not accepted service of the lawsuit. More than two months after the lawsuit was filed (during which time, LSU and its faculty, staff and students continue to be harmed by Elsevier’s refusal to honor its contract), Elsevier appears to be playing games with this public university. While it would be understandable for Elsevier to try to aggressively defend itself against the claims (even in a case where the facts clearly favor LSU), here Elsevier is essentially pretending that the lawsuit doesn’t even exist. This is not a standard delay tactic in litigation.

Elsevier does substantial business in the United States. The publisher charges millions of dollars each year to hundreds of universities and institutions in the United States. It has fourteen corporate headquarters and branch offices located in the United States. It is a member of the Association of American Publishers. According to OpenSecrets, last year Elsevier (under RELX) spent $1.72 million dollars lobbying in the United States (and lest you think RELX’s lobbying dollars are going to be substantially different from Elsevier, the 2014 filings show that while the company was still going by the name Reed Elsevier it paid $1.6 million dollars to its lobbyists). It has lobbied substantially on issues related to copyright and against open access. The publisher’s global litigation counsel was a witness in the House of Representatives Judiciary Committee copyright review hearing on Section 512. Elsevier has taken advantage of its rights to sue as a plaintiff in United States courts on multiple occasions in cases involving everything from breach of contract to copyright infringement to exemptions from sunshine laws. Clearly, Elsevier enjoys the benefits of its business in the United States and invests substantial resources into shaping the laws in this country.

While Elsevier enjoys all the advantages of doing business in the United States when it benefits the corporation, it conveniently decides that it’s a Dutch company when it is being sued. That LSU is being forced to chase Elsevier down in Amsterdam through the Hague Service Convention is an incredible outcome of the dispute.

Concluding Thoughts

Elsevier’s actions in the present case, including its refusal to acknowledge or respond to LSU’s requests for the publisher to abide by the terms of its own contract until after a lawsuit was filed, demonstrate its corporate culture. LSU’s complaint perfectly sums up Elsevier’s abuse of its monopoly power:

Elsevier’s total disregard for LSU’s serious concerns and amicable efforts to resolve this dispute reflects the monopolistic market power and arrogance that comes with Elsevier’s posturing as a “world-leading provider of information solutions that enhance the performance of science, health and technology professionals.”

Through its continuing breach of its contractual obligations to LSU under the Agreement, Elsevier has caused, and continues to cause, irreparable injury and significant damages to LSU and has significantly damaged, impaired and restrained the university’s ability to conduct research and educate its students, thereby improperly restricting and interfering with LSU’s primary purpose and constitutional mandate under the Louisiana Constitution.

In a time where states are facing enormous budget deficits public universities must ensure financial responsibility of scarce public resources. LSU is attempting to exercise sound judgment and stewardship of limited resources, but its only reward has been Elsevier blocking access to faculty, researchers and students at the university.