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Abstract
This article describes the litigation involving SkyRiver Technology Solutions and Online Computer Library Center, Inc. (OCLC). At its heart is who owns library catalog records. It begins with an overview of the organizations and examines their histories, products, and positions in the library services market in an attempt to understand and explain the background for the current situation. It continues with an overview of the lawsuit, including the plaintiffs’ claims for relief and the major arguments in OCLC's motion to dismiss. Finally, it turns to what the lawsuit means for the library services marketplaces, what potential changes may occur, and what OCLC's future might look like.
Notes
1. Compl. ¶ 1.
2. Brad Stone, Amazon Erases Orwell Books from Kindle, N.Y. Times B1 (July 18, 2009).
3. Julie Bosman, Publisher Limits Shelf Life for Library E-Books, N.Y. Times A1 (Mar. 15, 2011).
4. Pioneer Library System, HarperCollins 26+ Checkouts (Mar. 2 2011), available at http://www.youtube.com/watch?v=Je90XRRrruM
5. Josh Hadro, OCLC and MSU at Impasse over SkyRiver, 135 Lib. J. 14 (Apr. 1, 2010).
6. Marshall Breeding, SkyRiver and Innovative Interfaces Sue OCLC, 135 Lib. J. 18 (Sept. 1, 2010).
7. Marshall Breeding and Josh Hadro, SkyRiver Sparks Cataloging Competition, 134 Lib. J. 16 (Nov. 1, 2009). Note: This article, written in November 2009, states that OCLC has 144 million records. According to OCLC's WorldCat Web site, WorldCat has more than 200 million records as of January 2011. See also infra n. 25.
8. Id.
9. Id. Member libraries can create and upload bibliographic records to OCLC, regardless of the quality of their cataloging, occasionally to the detriment of OCLC's holdings. Sloppy, inaccurate, or substandard cataloging makes it more difficult for users locate items in a catalog. The disconnect between user perseverance and locating items in a catalog could have serious implications for research, especially if more libraries switch to WorldCat Local as their Online Public Access Catalog. Alternative cataloging utilities, especially ones with a clean set of records or better quality control, have a certain appeal.
10. SkyRiver, available at http://theskyriver.com/services
11. Breeding and Hadro, supra n. 7.
12. Interview with Richard Jost, Systems Librarian, University of Washington Marian Gould Gallagher Law Library, in Seattle, Wash. (Feb. 20, 2011).
13. Innovative Interfaces, Inc., History, available at http://www.iii.com/about/history.shtml
14. Compl. ¶ 6. See also http://www.iii.com/products/index.shtml
15. Marshall Breeding, Innovative Interfaces to Launch Sierra: A New-Generation Automation Platform, ALA TechSource (Apr. 26, 2011), available at http://www.alatechsource.org
16. Id.
17. OCLC, In the Beginning…, available at http://www.oclc.org/us/en/about/history/beginning.htm
18. OCLC, Heritage: Increasing Access to Information, available at http://www.oclc.org/us/en/about/history/default.htm
19. Id.
20. Id.
21. Moya K. Mason, Copy Cataloging: Our Quest for the Perfect Copy, available at http://www.moyak.com/papers/cataloguing-library-congress.html (internal citations omitted).
22. OCLC, supra n. 17.
23. OCLC, WorldCat Facts and Statistics, available at http://www.oclc.org/worldcat/statistics/default.htm
24. OCLC, The Features of Web Scale, available at http://www.oclc.org/webscale/features.htm See also Appendix A.
25. OCLC, supra n. 23.
26. Compl. ¶ 3.
27. Compl. ¶ 4.
28. OCLC, Products and Services, available at http://www.oclc.org/us/en/services/default.htm
29. Id.
30. OCLC, Web-Scale Management Services, available at http://www.oclc.org/webscale/overview.htm
31. Library of Congress, Program for Cooperative Cataloging, NACO—The Name Authority Component of the PCC, available at http://www.loc.gov/catdir/pcc/naco/nacopara.html
32. David Rapp, SkyRiver Challenges OCLC as Newest LC Authority Records Node, 136 Lib. J. 21 (Jan. 2, 2011), available at http://www.libraryjournal.com/lj/home/888310-264/skyriver_challenges_oclc_as_newest.html.csp
33. Library of Congress, Program for Cooperative Cataloging, supra n. 31.
34. Rapp, supra n. 3.
35. Id.
36. For a complete discussion of the topic, with archived copies of the proposed Record Use Policies and links to articles and blog posts from the library community on this topic, see Code4Lib, OCLC Policy Change, available at http://wiki.code4lib.org/index.php/OCLC_Policy_Change Thanks to Iris Jastram of Pegasus Librarian for inspiring the use of the world kerfuffle. See Iris Jastram, The OCLC Kerfuffle: In which I Write Much but Come to Few Conclusions, Pegasus Libr. (Nov. 20, 2008), available at http://pegasuslibrarian.com/2008/11/oclc-kerfuffle-in-which-i-write-much.html
37. Rick Mason, OCLC and Data, Libology Blog (Apr. 7, 2010), available at http://www.libology.com/blog/2010/04/07/oclc-and-data.html
38. Josh Hadro, OCLC Appoints Council to Revamp WorldCat Record Use Policy, Lib. J. (Sept. 15, 2009), available at http://www.libraryjournal.com/lj/technologyproductsvendors/855766-296/oclc_appoints_council_to_revamp.html.csp See also Josh Hadro, OCLC Delays Policy, Sets Review Board, 134 Lib. J. 23 (Feb. 1, 2009).
39. Hadro, OCLC Appoints Council, supra n. 38.
40. Id. The review board issued its final report in June, citing seven primary issues with the initially proposed policy: lack of a clear statement of the context in which the policy was issued, problems it was intended to address, and discussion of what was missing from the guidelines it would replace; lack of membership involvement in developing the policy; member uncertainty regarding how libraries would be permitted to use their own records; concerns that restrictions in the policy would limit innovation; technical concerns about requiring local library systems to implement a persistent provenance field marking where the record came from and the feasibility of limiting the reuse of individual records or portions of the records; the overall one-sidedness of the policy, favoring OCLC; and whether the policy could meet legal challenges raised and how it would be enforced. OCLC Review Board on Principles of Shared Data Creation and Stewardship, Final Report 2-3 (June 22, 2009), available at http://www.oclc.org/worldcat/catalog/FinalReport_ReviewBoard.pdf
41. Hadro, OCLC Appoints Council, supra n. 38.
42. OCLC, WorldCat Record Use Policy, available at http://www.oclc.org/worldcat/recorduse/default.htm
43. See Breeding and Hadro, supra n. 7.
44. SkyRiverSkeptic, comment to OCLC's Crisis Moment, Free Range Libr. (Aug. 4, 2010), available at http://freerangelibrarian.com/2010/07/30/oclc-in-crisis
45. Rob Styles, OCLC, Record Usage, Copyright, Contracts and the Law, I_Really_Don't Know (Nov. 6, 2008), available at http://dynamicorange.com/2008/11/06/oclc-record-usage-copyright-contracts-and-the-law
46. Karen Coyle raises an interesting question on this point: “[A]t what point does a record become no longer an OCLC record? If I download a MARC record, put it through EndNote or Zotero, add it to my Open Office bibliography … what have I got?” Karen Coyle, comment to OCLC, Record Usage, Copyright, Contracts and the Law, I_Really_Don't Know (Nov. 6, 2008), available at http://dynamicorange.com/2008/11/06/oclc-record-usage-copyright-contracts-and-the-law
47. See, e.g., Joe Matthews, The Value of Information in Library Catalogs, Info. Outlook Online (July 2000), available at http://www.sla.org/content/Shop/Information/infoonline/2000/jul00/matthews.cfm
48. OCLC Annual Report 2009/2010 40, 42 (2010).
49. See, e.g., Karen A. Coombs, Who's [sic] Record Is It Anyway?, Lib. Web Chic (Nov. 5, 2008), available at http://www.librarywebchic.net/2008/11/05/whos-record-is-it-anyway (suggesting that “focusing on the ownership issue is such a sticky complicated mess that it is likely to get libraries and OCLC absolute [sic] no where.” The author posits that the real question should be, “What rights do libraries wish to have for records obtained from OCLC?” Many of the rights she suggests appear similar to ownership rights. She would like perpetual use for downloaded items, to share downloaded items as the library sees fit, and to migrate format and transform records, should the library stop using MARC format).
50. See Mason, supra n. 37 (noting that “… OCLC doesn't have any rights over the data contained in the records. They have some rights on the records themselves, though there is debate over just what rights a cooperative organization has over member-created records.” Mason cites O’Connor's opinion in Feist v. Rural, 499 U.S. 340 (1991), which states, “Although a compilation of facts may possess the requisite originality because the author typically chooses which facts to include, in what order to place them, and how to arrange the data so that readers may use them effectively, copyright protection extends only to those components of the work that are original to the author, not the facts themselves.” Feist, 499 U.S. at 340. Mason, applying this to WorldCat MARC records, argues, “Not only does this strongly suggest that the data contained in the records [Author, Title, ISBN, etc.] is not protected, but that the author [i.e., “creator”] of the record is the one who holds what protection does exist.” Thus, it is likely that although one may be able to claim some copyright over a catalog record, no one would be able to claim ownership over the bibliographic data contained in the record, because they are facts); see also John Wilbanks, Data, Copyrights, and Slogans, Oh My, Com. Knowledge Blog (Jan. 24, 2009), available at http://scienceblogs.com/commonknowledge/2009/01/data_copyrights_and_slogans_oh.php; and John Wilbanks, Data, Copyrights, and Slogans, Part II, Com. Knowledge Blog (Jan. 26, 2009), available at http://scienceblogs.com/commonknowledge/2009/01/data_copyrights_and_slogans_pa.php For an overview of why search engines pull up primarily commercial enterprises, not libraries, see Wendy M. Grossman, Why You Can't Find a Library Book in Your Search Engine, The Guardian (London) 3 (Jan. 29, 2009).
51. OCLC, WorldCat Rights and Responsibilities for the OCLC Cooperative § 2C (June 2, 2011), available at http://www.oclc.org/worldcat/recorduse/policy/default.htm; OCLC, WorldCat Rights and Responsibilities for the OCLC Cooperative—Frequently Asked Questions, available at http://www.oclc.org/worldcat/recorduse/policy/questions/default.htm
52. OCLC, WorldCat Rights and Responsibilities for the OCLC Cooperative—Frequently Asked Questions, supra n. 51.
53. Id.
54. For the complete docket through May 16, 2011, see Appendix B.
55. Compl. ¶ 7, Mem. in Opp. to Mot. to Dismiss ¶ 1
56. Marshall Breeding, SkyRiver and Innovative Sue OCLC, 135 Lib. J. 18 (Sept. 1, 2010), available at http://www.libraryjournal.com/lj/home/886099-264/skyriver_and_innovative_interfaces_file.html.csp
57. Id.
58. Josh Hadro, OCLC and MSU at Impasse over SkyRiver, 135 Lib. J. 14 (Apr. 1, 2010).
59. Id. Neither OCLC nor SkyRiver has transparent pricing practices, and pricing information for library services is notoriously difficult to obtain. SkyRiver alleges OCLC charges different prices to different members, and according to one member of the blogosphere, SkyRiverSkeptic, the SkyRiver pricing model is to simply take an institution's OCLC cataloging charges and knock twenty percent off the top. SkyRiverSkeptic, comment on OCLC's Crisis Moment, supra n. 44.
60. Hadro, OCLC and MSU at Impasse, supra n. 58.
61. Or. Granting Mot. to Transfer Venue.
62. “A movant's second supplemental response to another party's opposition to a motion.” Bryan A. Garner, ed., Black's Law Dictionary 1582 (9th ed., Thomson West 2009), i.e., a party (in this case, OCLC) files a motion and is now known as the moving party. The opposing party files their opposition, the moving party then files a reply memorandum in support of their initial motion, and then the opposing party may request permission to file a surreply in response to the moving party's reply memorandum.
63. Or. Granting Mot. to Stay (Apr. 14, 2011).
64. Norman Oder, Lawsuit Follow-Up: Is OCLC a Company or a Cooperative? Is III ‘Hiding’ Behind SkyRiver? Lib. J. Insider (Jul. 30, 2010), available at http://blog.libraryjournal.com/ljinsider/2010/07/30/lawsuit-follow-up-is-oclc-a-company-or-a-cooperative-is-iii-hiding-behind-skyriver.
65. Speaking to BNA's Daily Report for Executives, Arthur Shartis, outside counsel for SkyRiver, accused OCLC of “intimidat[ing] schools purchasing [cataloging and bibliographic utility] services [from SkyRiver] by raising their fees for access to OCLC's WorldCat ILL tools.” Heather M. Rothman and Diane Freda, Grassley Seeks Estimate of Nonprofit Tax Exemption, Putting Organizations on Edge, 49 Daily Rep. Exec. (Bureau of National Affairs) J-1 (Mar. 14, 2011).
66. See, e.g., Compl. § 78. Bradford Lee Eden, in Information Technology & Libraries, notes that: “The appearance of WorldCat Local will have a tremendous impact on the disappearance of proprietary vendor OPACs. There will no longer be a need for an integrated library system (ILS); with WorldCat Local, the majority of the world's MARC bibliographic records are available in a Library 2.0 format. The only things missing are some type of inventory and acquisitions module that can be formatted locally and a circulation module. If OCLC could focus their programming efforts on these two services and integrate them into WorldCat Local, library administrators and systems staff would no longer have to deal with proprietary and clunky OPACs (and their huge budgetary lines), but could use the power of Web 2.0 (and hopefully 3.0) tools and services to better position themselves in the new information marketplace.” The New User Environment: The End of Technical Services, 29 Info. Tech. & Lib. 93, 95 (June 2010).
67. See, e.g., Compl. ¶ 62, stating that “Innovative has lost numerous contracts as a proximate result of OCLC's use of its monopoly power over the WorldCat database and its exploitation of its member libraries’ obligation to purchase OCLC products.”
68. OCLC, WorldCat Local at a Glance, available at http://www.oclc.org/us/en/worldcatlocal/about/default.htm
69. Cloud computing refers to storing applications and information remotely in contrast to storing software and data on a local server or computer. Moving operations to the cloud allows a library to focus on cataloging and other library services without spending resources on software and hardware. However, moving to the cloud is not without risk. See Steve Lohr, Amazon's Trouble Raises Cloud-Computing Doubts, N.Y. Times B1 (Apr. 23, 2011).
70. A tying arrangement is “an agreement by a party to sell one product … Only on the condition that the buyer also purchase a different (or tied) product, or at least agrees he will not purchase that product from any other supplier.” Mot. to Dismiss ¶ 28.
71. This article does not discuss SkyRiver/Innovative's claims under the California Business and Professions Code; the alleged Sherman Act violations are far more interesting and relevant.
72. Compl. ¶ 1.
73. Compl. ¶ 15.
74. Compl. ¶ 6.
75. Id.
76. Compl. ¶ 20.
77. Compl. ¶¶ 20–22.
78. Compl. ¶ 23.
79. Compl. ¶ 26. Note, however, that SkyRiver seems to have entered the market just fine.
80. Compl. ¶ 4.
81. See, e.g., Compl. ¶¶ 5, 26, 28, 29, 34, 35, 36, 38, 39, 65, 76, 82, 84, 89, 90, 91, 92, 98(a), 98(b), 101, 116(a), 116(b).
82. Compl. ¶ 52.
83. Id.
84. Compl. ¶ 58.
85. Mem. in Supp. of Def.'s Mot. to Dismiss, § 1.
86. Id. at ¶ 7.
87. Under the standard set forth in Ashcroft v. Iqbal, “‘[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations’ that if accepted as true, ‘state a claim to relief that is plausible on its face,’ that is, a set of facts that permit the court to do more than ‘infer more than a mere possibility of misconduct’ and instead allow ‘the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’” 556 U.S.—,—, 129 S. Ct. 1937, 1950 (2009).
88. Def.'s Mot. to Dismiss at 14.
89. Id.
90. Id.
91. Compl. ¶ 80, Mot. to Dismiss at 18–19.
92. Opp’n Mem. of Pl's to Def's Mot. to Dismiss at 3.
93. See Appendix C.
94. Richard Wallis, OCLC—Questions, Answers, and an Open Letter, Panlibus (Nov. 21, 2008), available at http://blogs.capita_libraries.co.uk/panlibus/2008/11/21/oclc-questions-answers-and-an-open-letter/
95. K. Wayne Smith, OCLC: Yesterday, Today, and Tomorrow , 25 J. Lib. Admin. 251, 253 (1998). In response to recent heightened scrutiny, caused by Senator Charles Gaffney's suggestion that Congress take a closer look at nonprofit income tax exemptions, OCLC's President and CEO Jay Jordan stated that OCLC essentially “breaks even” and that all resources are used to fund development and user programs. Rothman and Freda, supra n. 65.
96. Compl. ¶ 6.
97. There are different exemptions being discussed here: OCLC's status as a nonprofit under federal versus state law and tax exemptions for real property and income. In the current lawsuit, SkyRiver and Innovative are questioning OCLC's exemption from federal income tax and its status as a registered 501(c)(3). OCLC's previous defense of its status as a nonprofit entity arose when it was seeking a real property tax exemption under Ohio state law.
98. Peter E. Murray, A History of the OCLC Tax-Exemption Status, Disruptive Lib. Tech. Jester (Oct. 5, 2010), available at http://dltj.org/article/oclc-tax-exemption-status
99. OCLC Online Computer Lib. Ctr., Inc. v. Robert R. Kinney, Commr. of Tax Equalization, STATE OF OHIO – BOARD OF TAX APPEALS, 1983 Ohio Tax LEXIS 162 (Oct. 11, 1983).
100. OCLC Online Computer Lib. Ctr., Inc. v. Kinney, Commr., 464 N.E.2d 572 (1984).
101. Library Research and Services Exemption, R.C. § 5709.72 (Thomson Reuters 2011).
102. Rothman and Freda, supra n. 65.
103. Id.
104. For more on this point, see Larry Alford, Governing a Global Cooperative, 49 J. Lib. Admin. 567, 570 (2009) (noting that while OCLC is not-for-profit, it is also “not-for-loss” and must meet operation costs and invest in technology and innovation for the future).
105. Larry Alford, The Value of the OCLC Cooperative 3 (Jan. 15, 2010), available at http://www.oclc.org/us/en/multimedia/2010/files/arc/Larry_Alford_essay.pdf
106. Id. For example, during the Gallagher Law Library's Inventory Control Project, staff uncovered a copy of
(Inostrannoe grazhdanskoe I torgovoe pravo: uchebnik dli^a^vuzov I prakticheskoe posobie, sostavlen brigadoi pod rukovodstvom) S. I. Raevicha, or Private Foreign and Commercial Law, a textbook for graduate students, edited under the supervision of Raevich by the Legal Section of the Institute of Monopoly of Foreign Trade, Moscow (1933). No one on the staff reads Cyrillic, but a catalog record on OCLC, using a Romanized transcription, indicated that this title is in microform at Harvard, Columbia, and the Library of Congress; it appears the Gallagher Law Library has the only print copy. Without a fellow member institution having contributed the record, it would not be possible to even consider cataloging this book and making it available to users.
107. Alford, Global Cooperative, supra n. 104, at 569.
108. See Kendall F. Svengalis, Legal Information Buyer's Guide & Reference Manual, 10 (New England LawPress 2009) (accusing the Department of Justice's Antitrust Division as “solidif[ying] their reputation as pusillanimous apologists for pro-monopoly antitrust policy” during the Thompson/West acquisitions in 1995).
109. Id. at 3–24.
110. Most of which have since merged anyway.
111. See supra n. 69. SaaS is related to cloud computing and refers to a model such as OCLC's Connexion where data and the software are hosted remotely and a user accesses them through a Web browser on a local terminal. The term typically describes an application, such Google's Gmail—a branded software application installed on the user's computer to access data.
112. See, e.g., Carl Grant, The Cooperative We Need: Open and Collaborative Library Content, 30 Pub. Lib. Q. 34 (2011).
113. Id. at 34.
114. Id. at 38–39.
115. A very similar solution is proposed by Rick Mason at Libology. See Rick Mason, One Possible OCLC Solution, Libology (Aug. 2 2010), available at http://www.libology.com/blog/2010/08/02/one-possible-oclc-solution.html
116. Terry Reese, What Would It Look Like if OCLC Was Broken up? Terry's Worklog (Nov. 3, 2008), available at http://people.oregonstate.edu/~reeset/blog/archives/579
117. Id.
118. Id.
119. Kent Anderson, OCLC: Indispensable Database Collaborative or Social Media Prelude? (August 3, 2010), available at http://scholarlykitchen.sspnet.org/2010/08/03/oclc-indispensable-database-collaborative-or-social-media-prelude/
120. Mem. in Opp. to Def.'s Mot. to Dismiss ¶ 21.
121. LibraryThing, Press Information, available at http://www.librarything.com/press
122. Announcing OverCat, LibraryThing Blog (June 9, 2010), available at http://www.librarything.com/blogs/librarything/2010/06/announcing-overcat
123. Karen Coyle also argues, “It's not the bib data that makes WorldCat valuable to the library community, it's the library holdings data attached to those bib records.” Karen Coyle, comment on Rob Styles, OCLC, Record Usage, Copyright, Contracts and the Law, I_Really_Don't Know (Nov. 6, 2008), available at http://dynamicorange.com/2008/11/06/oclc-record-usage-copyright-contracts-and-the-law
124. Id.
125. For now, some members of the library community have accused Innovative of having “charge early, charge often” pricing tendencies, which would likely be replicated by SkyRiver, as it is run by the same people. SkyRiverSkeptic, comment on OCLC's Crisis Moment, supra n. 44.
126. Thanks to Karen Schneider for initially proposing this idea. See Karen Schneider, OCLC's Crisis Moment, Free Range Libr. (Aug. 4, 2010), available at http://freerangelibrarian.com/2010/07/30/oclc-in-crisis See also Alford, Governing a Global Cooperative, supra n. 104, for a discussion of some of OCLC's pro bono activities over the years, such as helping the Federal Bureau of Investigation identify the owners of stolen library materials, hosting CONSER, and helping libraries recreate catalogs destroyed by natural disasters.
127. See, e.g., Aaron Swartz, Stealing Your Library: The OCLC Powergrab, Raw Thought (Nov. 13, 2008), available at http://www.aaronsw.com/weblog/oclcscam Aaron Swartz is a co-founder of Open Library, http://openlibrary.org
128. See Norman Oder, So, Can Google Use OCLC Records? Yes, But. 2673 Academic Newswire (newsltr. of Lib. J.) (Sept. 10, 2009), http://www.libraryjournal.com/article/CA6695887.html
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