Will E-book Data Destroy Creativity?

In the ongoing saga of how e-books are changing reading habits, cultures, and markets, it should come as no surprise that publishers and platform providers of e-books have found a new way to cash in on our reading experience.  By analyzing what we read, how much we read, how quickly it takes us to read, and whether we finish a book, Amazon, Apple, and Barnes & Noble are acquiring an unprecedented amount of data about us as readers through the devices on which we read.

Of course, there are a number of potentially dangerous outcomes of this data acquisition that range from privacy to the very nature of creativity. Below I'll work through these issues in order of (my perceived sense of) importance:

Privacy
Records of our reading being kept in great detail can be subpoenaed by law enforcement.  While Alexandra Alter, author of the Wall Street Journal article that kicked off this discussion, says in an On the Media story  that she thinks it's unlikely that law enforcement will use the records in these ways, librarians know better.  Many libraries have taken to keeping minimal records on their patrons--so that they have nothing of substance to hand over to law enforcement--after the Patriot Act debacle of the early 2000s (see the ALA's position on the Patriot Act for more details).

The Market 
The publishing world is contracting, and by all accounts (from my friends in New York who work with publishers), getting an interesting book published is increasingly unlikely.  With new data showing--down to the word--what a typical reader likes, authors of challenging books that are out-of-the-mainstream may have an even more difficult time getting published when market data shows that people didn't get past the 2nd chapter of the last challenging, out-of-the-mainstream book that they bought.

Creativity
But there's an even deeper issue about creativity that lurks beneath the numbers of e-book reading.  Alter points out in her article, "Your E-Book Is Reading You," that 

Publishing has lagged far behind the rest of the entertainment industry when it comes to measuring consumers' tastes and habits. TV producers relentlessly test new shows through focus groups; movie studios run films through a battery of tests and retool them based on viewers' reactions. But in publishing, reader satisfaction has largely been gauged by sales data and reviews—metrics that offer a postmortem measure of success but can't shape or predict a hit. That's beginning to change as publishers and booksellers start to embrace big data, and more tech companies turn their sights on publishing. 

When I brought this up around the dinner table, a friend who has worked in games for a number of years had a swift and decisive response to this that begged the question of whether the "big data" used by the rest of entertainment industry has done anything to improve the quality of what's been produced.  In terms of data being used to shape games, he said, 

It's very scientific, but the only thing that gets you into creating is killed by that process. It's so hard to be creative once you're given the metrics that define your market.  It changes your approach.  If you can't trust yourself as a creator, you can't be as good.

He went on to say that when a new idea is truly original, the usefulness of metrics totally falls apart, because they simply won't apply.  If fact, under those circumstances, metrics act as shackles to a radical idea.  And when they are applied, you often end up with something, "so bland that no one will hate it."

I know that the jury is still out about how creativity, inspiration, and problem solving actually happen in  the brain--but I think there's a real logic in this idea: how useful is data about what's worked in the past, when we're hoping to make something new for the future? 

Counterpoint
The debate about data can get awfully sticky because relying on gut, and doing what's working without getting insight into how it's working or why it's working can produce organizations and industries that are unresponsive to their users and patrons.  This is becoming increasingly clear to the library profession as we scramble to catch up with patrons who could have told us years ago that our approach, equipment, and spaces were outdated--if we'd bothered to ask.  And assuming that people's habits don't say anything useful about their needs and desires smacks of an elitism ("how could they possibly know what's good for them?") that has plagued the publishing industry for decades.  Maybe a little bit of market data will do our writers and publishers a lot of good.

Though Alter claims that before this moment, reading had been a solitary act between the reader and the page, this isn't actually the first time that authors have taken their readers' desires into account in the writing process.  While Dickens was publishing his books chapter by chapter in monthly installments, he was simultaneously finishing them--and you can bet that he knew what people were saying about his plots.   Louisa May Alcott was so annoyed by her readers' responses to the first half of Little Women that she *spoiler alert* married Jo to a man who was old, rough, and grim as punishment.  Whether those books would have been better if genius had been allowed to create in a vacuum is impossible to know--but I feel safe in saying that they're pretty damn good as they are.


So, applying user data to the creative process isn't all bad, but I think that what concerns me most is that this data gathering process feels like everything else that I dislike about e-books: the people who it affects (the readers) don't know how it works, and it's being done first and foremost to increase profit margins, not to improve people's reading experiences.  For more on this topic, don't forget to check out our old old post on the Amazon Kindle DX.  And please, school me in the comments section if you disagree.

What the GSU E-Reserves Case Means for Libraries Now and in the Future

There has been a lot of insightful and thorough discussion of the copyright infringement lawsuit filed by publishers against Georgia State University, notably by Kevin Smith at Duke, at Library Journal, and at The Chronicle of Higher Education. In the post below I recap the events for those who have not be following, discuss the purpose and value of reserves, and examine the implications of the GSU ruling for librarians and others who support fair use in higher education.

GSU Recap

In 2008 three academic publishers (Cambridge, Oxford, and Sage) filed a lawsuit against GSU claiming that their e-reserves policy amounted to widespread copyright infringement. The lawsuit was bankrolled by the Association of Academic Publishers and Copyright Clearance Center; CCC is a for-profit company that contracts with publishers to license the use of electronic excerpts of copyrighted works. (See Educase summary). The publishers submitted a list of 99 instances where they felt that GSU was violating their copyright.

In May of this year (so, four years after the lawsuit was first filed), the U.S. District Court for northern Georgia released its 350 page opinion on the case, written by Judge Orinda Evans. The upshot? The Court found that in 94 of the 99 cases fair use applied and GSU had not violated the publishers’ copyrights. Generally people see this as good news for GSU and for universities in general, though the case is not definitely settled and may well be appealed.

The bulk of the opinion is an instance-by-instance examination for 74 of the 99 cases, but Judge Evans also gives general thoughts on when and how a non-profit educational institution can claim fair use of copyrights materials. Before I get into the implications of the ruling, though, I think it is important to step back and think about the purpose and value of the e-reserves in higher education.

What is the purpose of (e)reserves?

Whenever I get to know a new library, I always ask about reserves. As a student in grad school, my professors saved me hundreds of dollars and provided lively, interdisciplinary courses through the use of e-reserves. No other institution where I’ve worked or studied has used e-reserves as heavily as the iSchool (indeed, my non-LIS graduate program made much less frequent use of reserves). I can see how a publisher reading this might blanch at the lost licensing income, but in reality the culture at the iSchool was to use e-reserves as a convenient place to store all of the course readings. Many of the readings were articles accessible (and properly licensed) through the library’s databases. Nonetheless my pocketbook and I greatly appreciate the terms when I was able to spend a mere $20 or $30 on “textbooks.”

In general it seems the use of reserves (electronic or otherwise) varies by institution, department, and even instructor, based on culture, expectations, and preferences. Likewise, the purpose and value of reserves is not the same everywhere. Some instructors don’t use reserves because there are good textbooks available for a course (also, sometimes, because it is just easier), while others need to use reserves because the course draws on a wide and interdisciplinary set of works (and also perhaps to save students money). To be clear, I think it is perfectly valid for an instructor to make use of reserves in order to save students money. I do not think that doing so is necessarily or even likely to be a violation of copyright, and I think that the recent GSU ruling upholds this view.

Practical Implications of GSU Ruling

The ruling is ultimately about fair use of copyrighted works. Fair use is a notoriously (and purposefully) vague portion of copyright law that allows some unlicensed use of copyrighted materials in some instances. At many institutions, libraries craft guidelines or policies for what materials can be considered fair use, but leave it up to professors to determine what they select for fair use. For those who haven’t been pouring over copyright laws recently, the four factors that are weighed in determining fair use are:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In her opinion, Judge Evans determined that in the majority of cases, GSU’s e-reserves were covered by fair use. Specifically, Evans found that the first factor weighed heavily in favor of GSU because it is a non-profit education institution. The second factor also weighed in favor of GSU, because the works in question were all factual in nature.

The question gets more complicated in the third factor. Publishers would like there to be a hard and fast rule about how much of a work can be used under fair use, and they would like that amount to be very little. Evans considered rulings from other key copyright trials and ultimately suggested these guidelines for acceptable fair use: for works with 9 chapters or fewer, 10% of the total pages; for works with 10 or more chapters, 1 chapter may be used. Notably, the Judge deemed that it was “impractical, unnecessary” to prohibit the use of the same excerpt from one term to the next (p. 71), which is a guideline that many institutions follow. Thus, though many librarians and professors are disappointed that the Judge set out a “bright line” rule, she rejected the narrow, limited guidelines that the publishers called for.

The fourth factor for fair use also resulted in a complicated ruling. The Judge rightly pointed out that income from licensing is a very small percentage of the publishers’ overall income. However, she again drew on existing case precedents to determine that when “permissions are readily available from CCC [Copyright Clearance Center] or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format” (88-89) then unpaid use of that material is not considered fair use.

This ruling is not binding for other libraries or higher education institutions, though as Educase points out it is likely that the opinion could be used in future copyright disputes. 

Though this may seem to help clarify fair use, this opinion will not be legally binding for other institutions. Indeed, the ALA is urging libraries not to change their fair use policies quite yet. Additionally, this case is part of a long-term trend that has important implications for libraries everywhere. 

Long-term implications

As a said earlier I think the laudable purposes of e-reserves include making course readings free and easily accessible to students and enabling professors to design courses that draw on diverse and interdisciplinary resources. Though libraries do not have to be involved in providing e-reserves, many of them are for obvious reasons, and I think the purpose of e-reserves dovetails with the spirit and values of academic libraries. I think it is important to note that many items put on e-reserves are items that the library has already paid for, it simply makes access easier for students in that course when it is on e-reserve. (I’m not sure if this was the case for the instances addressed in the GSU lawsuit.)

Given that e-reserves are pretty innocuous, and that fair use does not substantially cut into the profits of publishers, I find the fact that the lawsuit was filed worrisome. I see this as part of a larger trend in academic publishing in which publishers claim that the digital environment is enabling copyright abuses, while in fact they use these same digital advances to control and limit access to scholarship and research. Consider how publishers have imposed restrictions on the number of times libraries can lend an ebook or how some publishers prohibit ILL distribution of journal articles. While the digital environment theoretically makes access easier for users (those who have the financial and technological means), publishers limit the way that we can use these works to even narrower parameters than we were able to with their print counterparts. By and large, libraries use e-reserves in much the same way they used paper reserves, but now students can access these works from their home. In response, publishers filed an extensive and sweeping lawsuit, claiming that these practices threated their profits and their livelihoods. Judge Evans called these claims “glib”, but I suspect this is just one of many ways publishers are seeking to use technological advances to lock down their content and extract payment for every conceivable use.

Though in many ways this opinion was good news for GSU, I think it is unfortunate that in 2009, after the lawsuit, was filed GSU changed its-reserves policy. The threat of such legislation makes many universities scared and unwilling to assert their full rights as non-profit educational institutions to use copyrighted materially under fair use. By being overly cautious and acquiescing to the unreasonable demands of publishers we risk giving these rights away entirely.

Transformed by Teaching

For the last class session of my quarter long information literacy class, my 15 students, the English and communications instructors who were a part of our learning community and I went to an Ethiopian restaurant for a coffee ceremony and to de-brief about the quarter.  The communications instructor assigned one last speech: "this will be your final impromptu speech: talk about at least one thing you learned this quarter and how it will affect your future."

While the coffee beans were roasted and ground, and the incense burned (anyone who hasn't enjoyed one of these coffee ceremonies, you're seriously missing out), the students shared incredible stories of growth that ranged from learning to measure ones own capacity for empathy to learning that there is a world of information that one has a right to access.  When I wrote my last Bookaneers post on the preparatory reading that I was doing before the quarter started, I could never have anticipated that I would end the quarter with tears rolling down my cheeks as my students stunned me one more time with their strength and insight.

When it was my turn to deliver my speech, I told my students that I'd learned three major things this quarter that would change my whole future:  

• I learned that I love to teach.  I love it so much that it got me up in the morning, got my intellect working in new and dynamic ways, and kept me up at night because I was so excited about the next day's lesson--and this came as a big surprise to me.  I got into librarianship with no idea of how much teaching is involved in every interaction--and how much classroom teaching is a part of the job description of an academic librarian.  By the time I began this class, I'd spent nearly two years teaching one shot research skills sessions to other instructors' classes, and had finally stopped hyperventilating long enough to begin enjoying the time I spent with those students in the classroom.  

But having a classroom of my own was completely different.  Over a whole quarter I had the chance to learn just what my teaching meant to the lives of the students that I got to see twice a week, every week.  And their reciprocal support for me can't be underestimated.  Though none of them knew that I was a new teacher, they instinctively reflected back to me my successes, my mistakes, and their unflagging support of my growth.  I can remember the revelation, during my first quarter in college, when we read Paulo Freire, that the boundaries between being a teacher and a student in the classroom should be wholly permeable.  Finally, in this class, I experienced that equality.  My fellow learners taught me about their cultures, their learning styles, their socioeconomic experiences, and my own teaching--and I grew, intellectually and emotionally, by leaps and bounds as a result.  In the future, I will make teaching a priority in my professional life, because I can't imagine anything more challenging or more fulfilling.   

• I learned the impact that information can have on people's lives.  Of course, my belief in the importance of access to information made me want to be a librarian in the first place, but until now, I'd ever seen the proof in such a real way.  Most of my students are in school because they want to go into social services--and almost all of them made that decision because they themselves have been helped or harmed by going through the social services system, as immigrants, as children, as veterans.  They have the experience and the passion to make outstanding professionals, but all of that knowledge is personal.  What we were able to develop in our class together, were the skills to push their personal narratives into wider-reaching reflections.  Through research, each student was able to contextualize his or her experience into a societal narrative, and marshal information resources to make their advocacy more powerful and persuasive.  In the future, I will always bear in mind the life-changing effect that access to information can have on people's lives.

• I learned about the courage that it takes to get an education.  Every one of my students' stories were different, but each of them surmounted a major obstacle to make it to higher education.  For example, one student ran away from her abusive husband when she was 15 to seek out personal freedom and education in America, though she didn't speak a word of English, and finally, at 32 she was in college.  And hers is hardly the most harrowing experience.  For many students everything about being in school was difficult: the writing, the long hours sitting still, the fear of looking stupid, the difficulty of the work, fitting in homework around children and a full time job, getting enough time on the computer to complete assignments.  But they'd made it to my classroom, and, amazingly, stayed alert, engaged, and fun during our hours together.

For several of my students, the greatest struggles were still to come.  Aside from all of the routine difficulties of college, several students faced incredibly difficult life events during the course of the quarter.  One student lost a close family member to a violent death on Sunday, and was back in my class the following Tuesday.   Another student and her children became homeless during the quarter, and she still managed to turn in her assignments to me.  I can honestly say that had I faced any of the things that these students faced during my second quarter in college, I would not have been able to complete my studies.  When I spoke to them about their amazing persistence in the face of seemingly insurmountable obstacles, each of them made it clear to me that being in school was their greatest achievement, and that they would do almost anything to keep learning.  In the future, I will honor every student who walks through my classroom door as someone who has or who will bravely overcome obstacles to their own learning.  I will never forget how difficult getting an education can be, and I will take my teaching as seriously as they take their learning.

I'm not sure when I'll get to teach another quarter-long class, but I am thrilled that I got the opportunity to teach this one.  Although something special happens when we get to spend months in a learning environment with the same group of people, I know that all of the lessons that I am taking away from this quarter are applicable to my one shot sessions.    And so, to all of my future students, I can't wait to learn what you have to teach me, and to all of my former students, thank you for teaching me so much.