Sunday, January 11, 2009

Why libraries must reject the OCLC Policy (part 1)

I have been thinking about the new, proposed OCLC Policy, scheduled to take effect in mid-February. I was driven to act after a recent AUTOCAT posting, in which a librarian suggested libraries not expose their collections to the web, except for "original cataloging," for fear of the new OCLC Policy. How terrible would that be?

I'm not sure the specific fear is justified, but fear certainly is. As the Policy states, violations of the OCLC Policy "automatically" terminate a libraries right to use any OCLC records. And OCLC gets to say what constitutes a violation.

It got me thinking about compiling all the arguments against the Policy. I want to start with the process and legal ones, which have gotten very short shrift. OCLC spokespeople are persuasive personalities, and OCLC's "Frequently Asked Questions" allay fears, but the Policy itself is a scary piece of legal writing and, as it explictly asserts, the only writing that matters.



1. The Policy fundamentally changes the character of OCLC, a "member" institution, with no formal member approval and with little member input.

WorldCat is why OCLC was created, is OCLC's largest revenue source, the basis of most of their other services and the most common way OCLC interacts with its members. The Policy transforms WorldCat in many respects, but most of all in how OCLC relates legally to its members from a cooperative to a sort of licensure.

OCLC is supposed to be a member organization. But what member organization would fundamentally alter its core business and transform their relationship with members without putting the issue squarely before them? Yet OCLC has done just that.

2. The Policy is a legal document. No other statements matter.

The policy is a legal document, not a statement of intent or aspirations. It explicitly states (§E7) that it is "the final, complete and exclusive statement of the agreement of the partiwith respect to the subject matter hereof." That means that the "intent" of the Policy as voiced by OCLC spokespeople or the seemingly gentler "Frequently Asked Questions" have no legal standing. If it's not in the Policy, it's not part of the agreement.

Licenses are legal documents. You don't sign legal documents based on casual pleasantries. If a landlord says you can move out at any time, but the lease says you have to give notice and pay rent until a new tennant is found, trust the lease or make the landlord change it.

3. The Policy is illegitimately retroactive.

The Policy limits the use and transfer of all records, not just new ones. The diligent catalogers of forty years ago who thought that OCLC was a humble cooperative helping libraries copy catalog had no idea that they were laying the foundations of a data monopoly.

Retroactive licenses are legally dubious and morally obnoxious. If OCLC wants to impose a new license, it should not do so on legacy data.

4. The Policy is perpetual and will create a perpetual monopoly.

Most licenses lay out what does and does not "survive" termination. Not here. There is no out from the Policy whatsoever. You can leave OCLC and sit on your records for twenty years and they still effectively own them, and they can still strip your library of them at any time. The policy lasts forever, on every record it touches and no matter who touches it.

The perpetual nature of the agreement means that, once this policy goes into effect, it's all over. The vast majority of the world's library data is owned and restricted. What US library could even think of exempting themelves of every "OCLC-derived" record? The "network effect" is just too great.

Unless OCLC changes its mind or dies, there will be no second chance.

5. OCLC can change the Policy at any time, in any way.

As the Policy states, "OCLC may issue a modified version of this Policy or a substitute for this Policy at any time." There is no check whatsoever on what this new policy can require or prohibit. Given the lack of member input that characterized its introduction, OCLC members may confidently expect to have no role in any future changes or "substitions" either.

A perpetual license that can be changed at any time is a lot of power to any institution. Does OCLC deserve that sort of power?

6. If you violate the policy your library automatically loses the right to any "OCLC-derived" records you have.

(§E1) "The rights to Use and Transfer WorldCat Records afforded by this Policy shall automatically terminate upon any breach of the terms of this Policy."

Imagine losing all the OCLC-derived records in your library catalog. Imagine turning all your automated systems off until every bibliographic and authority record that passed through OCLC at any point was identified and removed from your library, and new "untained" ones found or created from scratch. What library in the United States could keep its doors open if it lost the right to use "OCLC-derived" records?

It sounds dire, but according to the Policy, if you violate the Policy in "any" way, OCLC can shut down your library.

7. OCLC has sole discretion to declare a library in violation and strip it of its records.

Not only can OCLC shut down your library, but you have no recourse to stop them. As the Policy states "[§E6] OCLC has the sole discretion to determine whether any Use and/or Transfer of WorldCatRecords complies with this Policy."

If someone handed a government agency the power to kill libraries, and do so with no appeal or legal recourse, librarians would be in the streets in protest. Why does OCLC get a pass?

Call to action

Librarians and interested parties have only a month before the OCLC Policy goes into effect. It is time to put up or shut up.

UPDATE: Note that it's Friday, January 16. See the page.

*I am dying to be there, but I simply can't make it. One way or another, however, we'll try to get our word out.

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15 Comments:

Anonymous Anonymous said...

Why don't you just sue them if it's this legally dubious and causes this much of a problem?

1/11/2009 6:23 AM  
Anonymous Anonymous said...

Does Ohio require government-granted monopolies to be under regulatory control? If so, an Ohio lawsuit about *that* has far more chance.

Otherwise, this looks like a boilerplate subscription data contract. People agree to these absurd terms all the time. Companies settle out-of-court to keep judges from declaring the contracts absurd. And Companies gain great PR when they bend the rules.

What does OCLC have to lose by trying this? As far as I can see, nothing, so no amount of complaining will help unless it *builds* a cost to OCLC. But what options do libraries have?

1/11/2009 10:27 AM  
Blogger Tim said...

>Why don't you just sue them if it's this legally dubious and causes this much of a problem?

So, I am not a lawyer, but I suspect much of the license holds up. And the law is a bad answer here. You can't usually sue someone for what they *will* do to someone. You have to sue after you're dealt a specific injury. That means waiting for the policy to take effect, finding a library to violate it, waiting for OCLC to go after the library and demand it remove records records. After all that—two years?—the legal process *starts* and it could last years as well. In that time OCLC will have transformed the bibliographic world, and the transformation will probably be irreversible.

>Does Ohio require government-granted monopolies to be under regulatory control? If so, an Ohio lawsuit about *that* has far more chance.

They're not technically a monopoly, just effectively so. It might be possible to question OCLC's non-profit status. But this already happened—they were stripped of their status by an Ohio court that noticed that charging a lot of money for a service and not otherwise behaving like a charity was not what Ohio law intended non-profits to do. But their non-profit status was re-established and set in stone by a special act of the Ohio legislature.

1/11/2009 10:45 AM  
Anonymous Anonymous said...

“OCLC Online Computer Library Center, Inc. is a "nonprofit, membership, computer library service and research organization dedicated to the public purpose of furthering access to the world's information and reducing information costs", according to its website. It was founded in 1967 as the Ohio College Library Center.” – Wikipedia

Here is the Wikipedia link:
http://en.wikipedia.org/wiki/OCLC

I needed all that to even begin to understand what was being discussed here. I see that there is good reason to be concerned about the new policy being imposed by OCLC. The Wikipedia article does not mention the controversy, but there is some discussion in the article’s “Talk” section. I would suggest that those who feel that the policy is wrong and should be protested should add information about the controversy in Wikipedia, and at least try to get the present article marked controversial.

1/11/2009 11:26 AM  
Blogger Tim said...

Yes, I've noticed that. But as a participant, I clearly shoudln't edit it, except trivially. I hope someone takes you up on that idea.

1/11/2009 11:30 AM  
Blogger Diane said...

Tim,

Thanks for this excellent summary, and for keeping this conversation going. I worry that there's just too much passivity on the part of libraries around this issue, and that we'll all suffer greatly as a result.

Anonymous asks "What does OCLC have to lose by trying this?" I think they've already lost whatever credibility and trust they had remaining as a "member organization," but clearly they still think it's worth pursuing no matter that cost. It seems to me that it's up to us to make it more costly, by continuing to push in public and private, by looking for alternatives, and by refusing to buy new services from OCLC. I wish I knew if any of the larger "members" were making any waves privately, but I don't.

The other thing we need to do is find ways to ensure that data created as RDA data (which OCLC has no plans to use, far as I know) will be available openly and freely. Also, as MARC data is transformed to RDA by various services (the XC Project, for instance) we should actively claim that data for the open data world as well.

Not enough, I know, but as the alternatives become available, libraries may well (belatedly, to be sure) understand what their passivity has bought them.

Any idea whether the discussion on the 17th will be recorded, blogged, or what?

Diane Hillmann

1/11/2009 11:40 AM  
Blogger Tim said...

Thanks for chiming in on my blog. Now, if we can get Jennifer Bowen we'll have 3/4 of the "Future of Cataloging" panel up in arms about OCLC, leaving only Roy, who co-wrote the policy.

As far as RDA, you can "actively claim" all you like. The policy is quite specific. It applies not only to "WorldCat records"--a record that has at any time passed through OCLC, with or without any consequent changes--but to "works incorporating WorldCat Records or a work based on WordCat Records" (§D4)." Unless every item is redone from scratch, RDA is OCLC property from the start, even if--as appears--they don't offer RDA any support or encouragement. RDA's borked.

1/11/2009 11:51 AM  
Blogger Stephen said...

I will bring this up in LISTen #56 and probably propose a creative nuclear option. Posting time is less than twelve hours away. http://lisnews.org/podcast

1/11/2009 12:36 PM  
Anonymous Anonymous said...

The 17th is a Saturday if I'm not mistaken - is the NYPL discussion on Friday the 16th?

1/12/2009 10:23 AM  
Blogger Danielle Cunniff Plumer said...

Tim,

Just for the record, my comment on the AUTOCAT list was "In light of the WorldCat policy issues this may raise, I suggest that folks start with original catalog records." Start, not end!

Note that my opinions are my own and not necessarily those of my employer.

Danielle Cunniff Plumer

1/12/2009 11:41 AM  
Blogger Tim said...

No, point taken. And sorry to use your post as a launching pad, although it does illustrate what frightens me about this.

1/12/2009 11:54 AM  
Blogger Gina said...

Tim,

Have you heard of any libraries who are actually considering removing themselves from OCLC due to this policy change?

just curious...

1/12/2009 12:35 PM  
Anonymous Anonymous said...

Here in UK I emailed the British Library and my Member of Parliament for comment- also suggested BBC investigates. I'm unclear of just how this will impact me as a UK citizen but it doesn't smell right and the precedents it would set/break, particularly in the area of the retroactive nature of the proposal should ring alarm bells to all sorts of citizens and businesses in the information age.

1/12/2009 1:23 PM  
Blogger jmgold said...

Thank you for writing this Tim. We're going to be discussing the policy at an upcoming consortia meeting for catalogers and this post is an amazing summary of just why we ought to be outraged.

Rest assured I'll be sharing this information.

1/13/2009 7:35 AM  
Anonymous Anonymous said...

Working on the hopefully incorrect assumption that OCLC get their way and take possession of all existing on-line catalogue material, and that subsequent to this all libraries will have to use another source to do so, just think of the job opportunities that will abound for new and experienced librarians and library technicians, re-entering the data!

That's one way to beat the recession and provide new jobs.

We've already paid (at huge expense to councils, governments, education institutions, public libraries, private libraries, club libraries and of course the long-suffering taxpayer, rate-payer, students, club members and volunteers, of course), one way or another, for the existing work to be done, so why should we have to pay again to have it re-done with another, better provider?

If the USA and International Governments (Local, State and/or Federal) cannot see what such a data monopoly will do to their somewhat stretched budgets, the only alternative is to engage volunteers to input data into a rival (and free) on-line catalogue resource [OLCR].

What about LibraryThing? Will LibraryThing come under the "spell" of the OCLC policy revision? The information within it is of member's library collections, with the members filling in data they can either download from OCLC-like systems or by creating their own data input (as I've mostly done).

Dustcover jacket designs can also be attached to the book details, to help determine which edition you (and others) have. Those who provide the dustjacket images do so on the basis that it is freely available for all LibraryThing members to use and assign to their books; a great service.

Could OCLC take "possession" of the data I've uploaded to my catalogue in LibraryThing? I would hope not; it is almost entirely my own work and I have not (and do not) give them any rights to possession of my data, nor any rights to control my data, nor any rights to tell others they cannot use, view, download, transcribe or relay, in any way, the information I have chosen to make freely available to the general public.

Bill Gates, he of Microsoft fame, copped a hiding from the US Federal Government for his monopolisation of the software market (although he and Microsoft seem to have got over and around that again...), so why should OCLC be allowed to try the same thing?

misspeggy
Victoria, Australia

1/18/2009 7:11 PM  

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