Thursday, February 12, 2009

American Geophysical Union v. Texaco

Most of copyright law rests not on rules drafted by lawmakers but by interpretations made by judges. An important case is American Geophysical Union v. Texaco.

American Geophysical Union is a non-profit society for geophysicists and publishes several journals. The oil company Texaco's research center in Beacon NY had a library with three subscriptions to the Journal of Catalysis. Dr. Donald H. Chickering had photocopies made of eight papers from various issues of the Journal of Catalysis and kept the photocopies in his files.

Judge Jon O. Newman ruled that Chickering's copies were not made through fair use. Texaco infringed.

The judge didn't address if it is legal for independent researchers to photocopy. He was only talking about Texaco's researchers.

Many people feel the judge made a good call. Texaco is a rich multi-national; they need to pay the geophysicists for their journals.

Copyright law makes no distinction between rich companies and poor companies, so it's probably an infringement if a tiny company also photocopies for employee use. Many people feel OK with that too. It would be nice if a judge would rule on use by independent researchers. A legal bright line between for-profit independent researchers and gigantic public corporations would also help small organizations from knowing if they are breaking the law.

The law also makes no distinction between journals that are in-print and have sales departments and journals that went defunct many years ago. This is what I have a problem with.

I don't know a lot about catalysis but presumably the experiments in those papers can be re-recreated if necessary from the abstracts. Much numismatic evidence is unique — die pairings, overstrikes — and is needed by today's researchers. If we cannot photocopy papers then research stops. If a copyright owner isn't willing to register with the Copyright Clearance Center or even maintain a PO Box why should I respect his rights?

Some copyright holders purposely refuse to sell. For example Disney puts children's movies into the Disney Vault in the hopes of driving up sales. I'm not talking about that. I'm talking about copyright holders abandoning their work and leaving it as an 'orphan', with no licensing body to take care of it.

I believe the historial sciences would benefit from orphan works legislation providing some kind of legal mechanism to allow scholars to pay for out-of-print works.


Anonymous said...

As I read this story, the result makes no sense. If the journal was part of a site library, why would copying articles on site not be fair use? I suppose the question in my mind is were the subscriptions individual or institutional? Library subscriptions are considerably more expensive because it is expected that there will be wide use. If Texaco bought several individual subscriptions to circumvent an institutional rate, then it would seem to be a violation of the subscription agreement, not copyright laws.

Another point I would make, is that this case is probably somewhat antiquated since most scientific journals are now online (with research library access). You can download as you wish provided your institution has a subscription. The fact that downloads are allowed would suggest that it is within copyright law (since these can be blocked).

I would also take issue with your comment that abstracts should be sufficient. I can't comment on petroleum research specifically, but as someone who does professional scientific research, I can attest that abstracts rarely due anything except give a general idea of contents and are fairly useless on their own.

Anonymous said...

Since I posted my first comment, I continue to be very perplexed. The use of photocopying of articles by Texaco is very in line with common research practices. Most scientific research libraries have copy machines everywhere, and it is fully assumed that photocopies of reasonable legnth for personal use are fair use. Every researcher I know has dozens or more photocopies of research articles. It simply is impractical to go to the library everytime you need access to an article.

The question has to come down to whether the subscriptions were instituional or individual. Every journal I am aware of, offers instituional subscriptions which are designed for this exact use. If a journal were to disallow instituional subscriptions, it would likely not be purchased by libraries and quickly be relegated to obscurity. Further, no one would publish in a journal that doesn't allow wide exposure to the scientific community. What good is published research if it is not accessable in a practical way? If Texaco had instituional subscriptions, then I think the judge grossly erred (unless such use was expressly prohibited by the subscription agreement).

Ed Snible said...

The text I linked to at Cornell is very detailed. It is also very technical — I had a hard time following it.

This is not an obscure case. It is cited all over the web and appears on this list of major copyright cases.

It's great that many journals can be downloaded by every scientist. I think the lab negotiates a 'site license' for a package of journals. I believe this license is more expensive than subscribing to the journals. This case set up the legal framework to encourage companies to buy site licenses.

You are right that it can be very difficult to reproduce chemistry research given only the abstract! I admit that I put that in to be controversial. My point though is that given a team of chemists it is possible to recreate chemistry experiments. It might be impossible to recreate a numismatic paper without a particular overstrike.

I don't believe the judge erred. I believe congress erred by passing laws that are overly restrictive. I will post soon about copyright infringement that doesn't involve copying.