Coyle's InFormation

Following up on the these early stages of what will probably be an interminable legal case (it's easy to understand why one should avoid going to court whenever possible), The SkyRiver has replied to OCLC's Motion to Dismiss.[1] [2] This is the first document I have seen that to me clearly lays out Skyriver's basic contentions. Note that the major part of this document is the usual lawyerly recitation of cases supporting one statement or the other, and I have no idea what the legal arguments mean or whether they are convincing or not. But here are SkyRiver's primary facts as this document lays them out:

1. OCLC has monopolies in the US academic library market

"OCLC is monopolizing three product or service markets—bibliographic data of libraries’ holdings; cataloging service; and interlibrary lending service (ILL). OCLC is attempting to monopolize a fourth service market—integrated library systems (ILS)." p. 1

2. OCLC has used those monopoly positions to prevent competition

"Since at least 1987, OCLC has demanded that its member libraries agree to terms of membership that prohibit sharing the metadata of their own library holdings contributed to OCLC’s bibliographic database known as WorldCat with any for-profit firms for commercial use and require member libraries to use OCLC’s services. OCLC has imposed these membership terms to prevent the development of competing bibliographic databases, cataloging services or ILL services by erecting barriers to entry in these three markets. OCLC is also using its monopoly power in these three markets in its attempt to monopolize the ILS market." p.1

3. OCLC has targeted SkyRiver's business by using punitive pricing for libraries that use SkyRiver's cataloging services

"OCLC’s conduct has injured SkyRiver by deterring libraries from using its service, and has injured libraries that are using SkyRiver to reduce costs by preventing those libraries from uploading their new records into WorldCat at the price charged to everyone except SkyRiver users." p. 2

Beyond that the arguments become more complex. In particular there is the issue of the 20+ years that OCLC has been building up WorldCat under a policy that has prohibited (acc. to the response, p.4) libraries from sharing their cataloging data with for-profit entities. With no other non-profit entity providing cataloging services to US academic libraries, the records are essentially locked-up in WorldCat and no one else can enter the market.

This brings me to a point that I got wrong in a previous post, which is that Skyriver is asking for access to the WorldCat database. The argument there, if I read it correctly, is that WorldCat is the only major source of academic library holdings that can be used for an effective ILL service. WorldCat is the result of monopoly practices. To allow for competition, WorldCat (e.g. bibliographic data and holdings) should be made available for a reasonable price to competing ILL providers. While this seems jarring at first, the more I think about it the more sense it makes.

What the response does not say explicitly, and perhaps it would be irrelevant in a legal case, is that one could look on WorldCat as a shared community resource, not the property of OCLC. In fact, OCLC uses this kind of argument in its record use policy, but somehow leads to the conclusion that WorldCat should not be used to foster non-OCLC library services. It seems easy to make the opposite argument, which would be that WorldCat could be the basis for a wide range of services that would benefit libraries, even if they do not come from OCLC. Imagine if OCLC were to set non-discriminatory pricing for use of WorldCat and anyone could make use of the WorldCat data. There could be a "share-alike" clause that would require those users to return pertinent information to the bibliographic collective. WorldCat would grow, and the range of products and services available to libraries would grow. This seems like a GOOD THING.

I realize it may not be easy to do the analysis that would lead to pricing that both fosters sharing and makes it possible even for small businesses* to arise in the library market. It should be possible, given today's technology, to do this efficiently but we know very little about the cost structure of WorldCat. It is clear that there are many activities relating to the care and management of that database, all intertwined with OCLC services and valuable research projects, as well as linked deeply into tens of thousands of library systems around the world. Should the court require OCLC to open WorldCat for use, we need to see a transition that is non-destructive to the library ecology.

* The reason I emphasize small businesses is that I believe that smaller, more nimble vendors could exist to serve the needs of specialized and smaller libraries which are not OCLC members at this time. I see the potential to widen the community of sharing, even to include more non-library institutions and businesses. Another GOOD THING, IMO.

Continuing on...

Rights

Here's a somewhat extended quote from the Motion that quotes the original complaint:

"At other points in the Complaint, without addressing the text of the records use policy, Plaintiffs characterize the policy as placing broad restriction on a library's use of its own records. ([Complaint] paras. 34-36) However, these conclusory allegations are belied by the actual terms of the records use policy pled above.. For example, Plaintiffs claim that 'a member library may not transfer or share records of its own holdings with commercial firms' ([complaint] para 35), but the records use policy states no such thing. Throughout these allegations, moreover, Plaintiffs confuse and obscure the terms 'OCLC records' and 'library records.' In reality, the situation is simple: OCLC does not prohibit a library from sharing its original cataloging records with whomever it pleases; it does, consistent with the fact that the WorldCat database is copyright, claim a legal right to the unique identifier information used to link and make usable records in WorldCat." (Motion, pp 7-8)

"Again, at most, the Complaint pleads only that libraries cannot share OCLC's records, not that they cannot share the records they themselves created." (Motion, p. 14)

This is a very interesting set of statements. First, it plays with the ambiguity in talking about "library records," denying that libraries cannot convey records of their holdings, as stated in the Complaint, then stating that they can share their original cataloging records, which is not what most in the library world would consider equivalent to "library holdings." What it comes down to is the ownership of the records in the library catalogs that represent the holdings of the library. By "the holdings of the library" I understand not just some holdings, but either all of the holdings or some useful set of those holdings. The set of records that were originally cataloged by the library is a somewhat random set, and not useful as "library holdings." OCLC claims ownership in all records in a library's catalog that were not created as original cataloging by that library. Although this is a distinction it is not a distinction that relates to any particular functionality or useful library projects relating to their holdings. It's useless nonsense, is what it is, nitpicky, and proof that OCLC was boxed into a corner as it tried to claim ownership over the millions of records created by libraries around the world.

OCLC also states in the second quote above that those records in the library data are "OCLC's records" and are not records that the libraries created. Here, "created" is a key verb. Any library that has done significant modification and upgrading to a record can probably claim at least an amount of co-creation with other libraries. The claim that those records belong to OCLC is an insult to the libraries that have put so much effort into the shared pool of bibliographic data. Of course, OCLC would counter that the libraries and OCLC are one and the same. The unilateral actions of OCLC around the record use policy definitively shattered that view.

Equally interesting is the claim of copyright on the database, a claim that has not been challenged and that might not survive a challenge. A database of bibliographic data may just be seen as a compilation of facts, essentially sweat of the brow rather than a creative output. Add to that the fact that much of the sweat was not OCLC's but was on the part of thousands of libraries, and the copyright claim looks thin. Ditto the claim to the OCLC number, which is purely a sequential number assigned to records as they enter the system. The claim that the OCLC identifier makes OCLC records usable is not defensible, IMO, in that every database assigns numbers to things as part of the mechanical database management process. There's nothing new or creative about the fact that OCLC records have OCLC database numbers.

Remember, though, that these statements are not meant for you and me; they are addressed to a court that may have very little knowledge in these matters. Obfuscation of the facts is undoubtedly part of the trial process, and on the part of all parties involved. Unfortunately, OCLC's motion goes beyond obfuscation -- it gets nasty.

Sarcasm and Nastiness

I've only read the legal documents for a few cases that I'm particularly interested in, so my experience here is limited. However, I would assume that a court case would best be won on cleverness, wily strategies and the ability to out-wit ones' opponent. In this as in other professional and public endeavors, I would expect the participants to affect a tone of detached politeness, even while skewering their rival. The OCLC motion plummets into sarcasm and nastiness. Here are some quotes:

"...Plaintiffs have thrown a plethora of allegations of OCLC's purportedly anticompetitive actions into the Complain to see if any stick..." (Motion, pp. 1-2)

"While OCLC denies that either of these libraries has suffered as the result of anything other than purchasing the Plaintiff's inferior cataloging software..." (Motion, p. 17)

"... vigorous competition against a company offering less expensive, but inferior products, is perfectly lawful." (Motion, p. 1)

"Nevertheless, what is sauce for the goose is sauce for the gander -- having pled a fiction that undercuts the existence of any claims they can pursue, Plaintiffs cannot claim to have been injured..." (Motion, p. 4, footnote)

"Nothing in the antitrust laws requires OCLC to subsidize SkyRiver's inferior product by setting its pricing for registering holdings into WorldCat as low as possible." (Motion, p. 28)

I find these statements to be embarrassingly unprofessional in nature, although for all I know this is the norm in legal arguments.

Separate Realities

I suppose that one of the main skills for legal argumentation is the ability to present "facts" in ways that benefit your client, regardless of the facts. (If I were a judge and had to listen to this stuff, I'm sure I'd be driven to homicide.) Here are some examples from the motion to dismiss:

1. The named libraries, Michigan State and Cal State Long Beach, were not harmed by OCLC, they simply declined to purchase OCLC's record upload service. This is cited as proof that they were not coerced into making a purchase (which appears to be one of the antitrust offenses). (p. 29) There is no mention that the libraries could not afford the price that OCLC offered, that the price changed without warning, etc.

2. WorldCat Local is not a competitor to ILS systems because it exists in addition to the ILS system. The Motion of course completely fails to connect WC Local, its attempt to limit use of the bibliographic data, and the upcoming "in the cloud" library systems platform. Are they worried that it might actually look like improper use of the WorldCat database?

3. SkyRiver does have bibliographic records, so OCLC cannot be accused of having a monopoly on bibliographic records. (As if any bunch of bibliographic records will do.) Elsewhere in the document they boast of having the largest bibliographic database. Are we back to the Goose and the Gander?

_____

These are just a few of the topics in the Motion, and just the ones that I found most interesting. They may not even be the most relevant topics relating to the lawsuit. I suggest that you read the Motion and other documents for yourself.

OCLC has filed a motion to dismiss in the anti-trust lawsuit brought by SkyRiver/III. I presume that this is Standard Operating Procedure in cases of this type. As someone who is not versed in the complexities of antitrust law, I have no idea if OCLC makes a good case in its motion. My impression is that the OCLC lawyers are quite adept, and that bodes well for OCLC in the case.

I will comment on some interesting text and subtext of the motion. Since this will get long, here is quick summary of what follows:

• The motion states that SkyRiver has so far offered little proof of harm due to OCLC's business practices.
• The motion may play on the court's ignorance of the library world and of OCLC's definitions.
• OCLC makes some interesting claims to rights.
• The motion makes claims that twist the words of SkyRiver's complaint.
• The motion contains some unfortunate use of sarcasm and nastiness.
• The motion undermines some previous OCLC claims as to the force of the Record Use policy.

Little Proof

The motion claims that the SkyRiver complaint contains few hard facts that could be used to back up the anti-trust claims. (Although I have no idea how detailed such a complaint is supposed to be.) It doesn't explain the library market and OCLC's role in it. What I find particularly lacking is that there is no comparison of pricing for record uploads between the libraries that moved to SkyRiver for cataloging and other libraries that upload records to OCLC. (According to the 2009 annual report, only 12% of records added to WorldCat were added via cataloging on OCLC; the rest were batch loaded.)

Ignorance and Definitions

OCLC plays heavily on the confusion between WorldCat, the database, and the records in libraries' catalogs. This is not an easy concept to grasp, and it is not explained well in the SkyRiver complaint. Wherever SkyRiver's complaint refers to "library records" OCLC counters using "WorldCat" in its place. It makes a huge difference to be talking about the records in a library's catalog vs. the entire WorldCat database. OCLC claims that SkyRiver is demanding that OCLC make all of WorldCat available for free to competitors. What is actually said is:

"Library records should be freely and openly available for use and re-use either in the public domain or by reasonable means of access for all, including for-profit library services firms." (Complaint, para. 76)

But OCLC re-words this in its response as:

"... (a) library records should be free, regardless of OCLC's inestment in aggregating, normalizing, enhancing, maintaing(sic), and delivering services based on them..." (Motion, p. 10)

OCLC also says:

"Plaintiffs pled, at most, only that libraries cannot share OCLC records, not that they are prevented from sharing records they created." (Motion, p. 21)

What is clear here, as it is throughout the motion document, is that SkyRiver is talking about the records that are in library catalogs, and OCLC is talking about "OCLC" or "WorldCat" records. By referring to the records in library catalogs as "OCLC" records, OCLC thus claims ownership to those records. In the former meaning, the libraries are prevented from making use of the records in their catalogs as they wish; in the latter, OCLC is the owner of a database and claims are being made against that database. Unless these definitions are cleared up, the two parties are just talking past each other, and no member of the court is going to make sense of it all. That, of course, would probably be to OCLC's advantage.

Record Use Policy

The original complaint cites the OCLC record use policy as a means by which OCLC maintains

"strict control over its members' access and use of the WorldCat database...". (Complaint, para. 33)

OCLC's motion first complains that SkyRiver did not attach a copy of the Policy with its original filing (but did so to their response to the Motion to Transfer). This is irrelevant to the case, I believe, and therefore is a bit of sniping at SkyRiver's lawyers, hinting that they aren't doing a good job. Anyway, here's how OCLC replies to that:

"The nature of these documents is not pled: it is not claimed that these documents are anything other than 'guidelines' OCLC publishes or that OCLC has ever used these documents to prevent a library from providing its catalog records to Plaintiffs or any other entity." (Motion, p. 7)

There's more, but let's first examine this statement. During the big broo-ha-ha about the policy, Karen Calhoun published "Notes on OCLC's updated Record Use Policy" on the OCLC blog, and stated:

"The updated policy is a legal document. Being a player on the Web, working on behalf of libraries, requires that the policy be a legal document."

That is of course the opposite of what is said in the motion.
(See comment below by Jennifer Younger: "The new 2010 policy is correctly characterized in OCLC's Motion to Dismiss as a code of good practice to guide members' choices about how they share their copies of WorldCat records.")

What is sad, however, is the statement, true as far as I know, that OCLC has never used these documents to prevent libraries from sharing their records. It hasn't had to, because the mere threat has been enough to prevent libraries from acting. The libraries that have released their records have done so unscathed, but they are few. There are of course two ways to interpret this: libraries are afraid to release their records, fearing retribution, or that libraries agree with OCLC's argument that WorldCat would be endangered should library records be openly shared.

I'll pause here and take up again shortly.

The judge in San Francisco's Ninth Circuit court has agreed to OCLC's request to transfer the proceedings in the SkyRiver/OCLC suit to the Southern District Court of Ohio. In an impressively thoughtful 10 page document, the judge weighs the various arguments by the parties relating to the request to transfer. In the end, the decision was based on two things:

1. A majority of the potential witnesses that are neither SkyRiver nor OCLC employees (e.g. libraries that can give evidence) are closer to Ohio than to California.
2. In terms of documentation as evidence, most of this documentation will need to come out of OCLC's file cabinets, since the suit refers to OCLC business practices over a significant period of time.

I was hoping to be able to sit in on some of the action in the San Francisco court, although more experienced folks have told me that it could be deadly dull. Now we need to find possible bloggers in the Ohio area to cover this. Any volunteers?

I suppose one could be gratified to learn that there are institutions that move at least as slowly as libraries, but I'm not happy about the delayed gratification that entails, nor the fact that it means that will we have to try to move forward as a community without having answers for quite a while.

The recent documents that have been filed with the court in the SkyRiver/OCLC case have the following actions and dates in them:

First, OCLC will request that the suit be moved from Northern California to the Southern District of Ohio. Just to cover that motion will take us through October, 2010.

If that does not derail the current calendar (and I presume it could cause this date to be moved back), then the Case Management Conference will be on January 14, 2011 in the San Francisco courtroom.

No, I have no idea what a "case management conference" is but it sounds like something preliminary. I would love it if someone with a legal background could offer some occasional commentary on what some of these steps mean. Right now I presume that all of this is par for the course for lawsuits of this nature, but never having observed such a case before, I really have no idea. Anyone know some law librarians who can chime in?