Pearson Buys Global English + McGraw-Hill, Cengage, Wiley Education News

Getting to be a recurring story: Pearson buys a language learning company this time Global English located in California.  Pearson paid $90 million.  From the press release:

Founded in 1997 in California, GlobalEnglish is a leading provider of cloud-based, on-demand Business English learning, assessment and performance support software. It serves more than 450 corporate customers, including 20 per cent of the Forbes Global 2000 companies, including General Electric, HSBC, Tata Consultancy Services and Unilever. Its product suite is uniquely suited to serve the needs of global professionals with a comprehensive offering - formal Business English learning coursework, informal and social learning capabilities, performance support tools, an enterprise collaboration platform, a mobile app, assessments and a premium one-on-one coaching service. GlobalEnglish’s Business English content is also entirely focused on the application of Business English to real life business situations such as composing emails and participating in conference calls, and its efficacy is highly rated by global companies and their employees. Approximately 75 per cent of GlobalEnglish’s more than 200,000 active subscribers are in fast growing economies in Latin America and Asia

McGraw Hill announced some executive changes in advance of their Education spin-off (Press Release):

To continue the process of building a world-class team to lead the new education company, the Corporation is appointing Patrick Milano, currently Executive Vice President and Director of the Program Management Office of the Corporation's Growth and Value Plan, to the new position of Chief Financial Officer and Chief Administrative Officer of McGraw-Hill Education.  Mr. Milano, a multi-year veteran of McGraw-Hill, including in the education segment, has successfully led the separation phase of the Growth and Value Plan since last year.  In this new role, he will be responsible for Finance, Manufacturing, Distribution and IT, reporting to Jack Callahan, Chief Financial Officer of The McGraw-Hill Companies, until the new Chief Executive Officer of McGraw-Hill Education is appointed.  Joe Micallef, currently Senior Vice President, Finance and Operations, will work closely with Mr. Milano on standing up McGraw-Hill Education before retiring following a very successful career at the company.  (More)

Cengage announced their Q3 results last month (Press Release)

Revenue for the third quarter 2012 is estimated to be between $335 million and $340 million as compared to $319 million for the same period in the prior year. Excluding National Geographic School Publishing (“NGSP”), acquired on August 1, 2011, revenue for the third quarter 2012 is estimated to be between $325 million and $330 million driven by growth in the higher education market. Domestic Learning revenue, excluding NGSP, is estimated to be $205 million to $210 million, as compared to $194 million for the same period in the prior year.
Adjusted EBITDA for the third quarter 2012 is estimated to be between $67 million and $72 million. The prior year third quarter Adjusted EBITDA of $89.7 million did not include an accrual for incentive compensation, but did include a credit related to a reversal of an accrual for incentive compensation accrued during the first half of fiscal 2011. On a comparable basis to this year‟s third quarter, Adjusted EBITDA for the third quarter of the prior year would have been $65 million.
Excluding NGSP, Adjusted EBITDA for the third quarter 2012 is estimated to be between $70 million and $75 million. Adjusted EBITDA for NGSP is negative for the quarter primarily due to seasonality as well as one-time costs related to achieving synergies from the integration of NGSP into Cengage Learning.

Here is the full 3Q report

In their investor presentation Cengage also provided this update to their debt refinancing effort:

We completed the previously announced amendment and extension of our Credit Agreement whereby we:

• Extended the maturity of $1.3 billion of our existing Term Loan, net of a partial pay down, to July 2017
• Provided for new commitments to maintain the existing $300 million of revolving credit facility availability until April 2017 resulting in a total extended and non-extended revolving credit facility of up to $525 million until July 2013, $300 million thereafter. We also completed our previously announced private placement of $725 million senior secured notes due in April 2020. These notes bear interest at a coupon rate of 11.5% and were issued at par. We used a portion of the proceeds from these notes to pay down $489 million of the extended term loan.

Anyone interested in how the education business is doing will be disappointed in the deck.

In case you missed it Harcourt's "Official Statement" on their bankruptcy (Press Release):

Today, Houghton Mifflin Harcourt filed a “pre-packaged” comprehensive financial restructuring plan that will strengthen the Company financially so we can continue to invest in our business and ensure we are well positioned for the future. This plan, which is supported by the vast majority of our key financial stakeholders, will eliminate $3.1 billion of debt through a debt to equity transaction, and reduce our annual cash interest costs. The Company today lodged voluntary petitions for reorganization under Chapter 11 in the U.S. Bankruptcy Court for the Southern District of New York. With a more appropriate capital structure to support our strategic plan and business objectives, we will have greater financial flexibility to pursue growth opportunities.

John Wiley released their 3Q results earlier in the month (Press Release):

John Wiley and Sons, Inc. (NYSE: JWA and JWB), a global provider of content and workflow solutions in areas of scientific, technical, medical, and scholarly research; professional and personal development; and education today announced results for the third quarter of fiscal year 2012:

• Revenue growth of 1% including and excluding foreign exchange (or "FX")
• Revenue by segment, including FX:  STMS +3%, P/T -6% and Education +2%
• Adjusted EPS grew 8% to $0.91, or 6% excluding FX.  Growth was driven by top-line results, prudent expense management and lower interest expense and income taxes.
• Shared Services and Administrative Costs excluding FX, were up 3% to $91 million, driven principally by technology spending to support investments in digital products and infrastructure.   
• Outlook:  Reaffirming FY12 revenue guidance of low single-digit growth excluding FX and EPS guidance in a range from $3.15 to $3.20 including the effect of FX and excluding the unusual tax benefits.  
• Acquisition:  In February, Wiley acquired Inscape Holdings, a leading global provider of workplace learning solutions, for $85 million in cash. Inscape will be integrated into Wiley's Professional/Trade business where it will combine Wiley's extensive reservoir of valuable content and its global reach in leadership and training with Inscape's technology, distribution network, and talent expertise, including the innovative EPIC online assessment-delivery platform and an elite network of nearly 1,700 independent consultants, trainers, and coaches. Annually, Inscape generates approximately $20 million in revenue.
• Divestment:  On March 7, 2012, Wiley announced that it intends to explore opportunities to sell a number of its consumer print and digital publishing assets in its Professional/Trade business as they no longer align with the company's long-term business strategy.  Fiscal Year 2011 revenue associated with the assets to be sold was approximately $85 million with a direct contribution to profit, before shared-service expenses, of approximately $6 million.  Assets include travel (including the well-known Frommer's brand), culinary, general interest, nautical, pets, crafts, Webster's New World, and CliffsNotes.  Wiley will re-deploy resources in its Professional/Trade business to build on its global market-leading positions in business, finance, accounting, leadership, technology, architecture, psychology, education, and through the For Dummies brand. 
• Share Repurchases: Wiley repurchased 520,000 shares this quarter at a cost of $23 million.  The Company has 2.9 million authorized shares remaining in its program.

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MediaWeek (V5, N22): Orlando's "History"; Preserving Digital Archives, Publisher Apps + More

Apparently some relatively standard fact checking of the 2007 book by Orlando Figes The Whisperers: Private Life in Stalin’s Russia which was being translated into Russian has thrown up some 'minor and major' errors.  The project has been abandoned. (The Nation)

In 2004 specialists at the Memorial Society, a widely respected Russian historical and human rights organization founded in 1988 on behalf of victims and survivors of Stalin’s terror, were contracted by Figes to conduct hundreds of interviews that form the basis of The Whisperers, and are now archived at Memorial. In preparing for the Russian edition, Corpus commissioned Memorial to provide the original Russian-language versions of Figes’s quotations and to check his other English-language translations. What Memorial’s researchers found was a startling number of minor and major errors. Its publication “as is,” it was concluded, would cause a scandal in Russia. This revelation, which we learned about several months ago, did not entirely surprise us, though our subsequent discoveries were shocking. Separately, we had been following Figes’s academic and related abuses for some time. They began in 1997, with his book A People’s Tragedy, in which the Harvard historian Richard Pipes found scholarly shortcomings. In 2002 Figes’s cultural history of Russia, Natasha’s Dance, was greeted with enthusiasm by many reviewers until it encountered a careful critic in the Times Literary Supplement, Rachel Polonsky of Cambridge University. Polonsky pointed out various defects in the book, including Figes’s careless borrowing of words and ideas of other writers without adequate acknowledgment. One of those writers, the American historian Priscilla Roosevelt, wrote to us, “Figes appropriated obscure memoirs I had used in my book Life on the Russian Country Estate (Yale University Press, 1995), but changed their content and messed up the references.” Another leading scholar, T.J. Binyon, published similar criticism of Natasha’s Dance: “Factual errors and mistaken assertions strew its pages more thickly than autumnal leaves in Vallombrosa.

Some may remember Figes as the classy guy who was writing derogatory reviews on Amazon of books by his colleagues.

Who collects the 'memories of a nation' in the digital age? Dame Lynne Brindley CEO of the British Library has an opinion. (New Statesman)

It is a matter of great regret that it will never be possible to plug the gap in our understanding of UK opinion about major social and cultural issues at the very beginning of the digital age. Will academics in the future feel the same sense of loss about some of this material that we feel today about the missing works of Ancient Greece’s greatest writers and thinkers?
The UK has been in the slow lane when it comes to preserving digital material. Non-print legal deposit is now widespread internationally, including much of Europe, Canada and New Zealand. It is two years since the United States Library of Congress announced that it would be keeping copies of every Tweet. The latest version of the UK Government’s proposed regulations is less than perfect. It would exempt start-ups and micro businesses from depositing offline publications or the need to provide passwords to enable us to harvest their websites.

The head of McGraw Hill Education got some press in the past week or so for suggesting that textbooks are on borrowed time. Only a little self interest of course.  (Converge)

And what they want from us is, "Help me improve my performance. You improve my performance, learning company McGraw-Hill, then we will improve your performance." So it allows us to more aggressively invest back into our learning materials, and other kinds of things as well.

For example, we're probably where IBM was in the early- to mid-90s. IBM had their mainframes and is the ubiquitous case study. Then they had to move into services or products that their customers valued more.
In the end, it's not only about investing more in materials that will improve performance, but it's investing in our capability to provide other services to colleges and institutions, like retention services or online enablement services. The move toward e-materials allows us to change our business model entirely in many ways.

 More about magazine publishers but Tech Review on "Why Publisher's Don't Like Apps"

But the real problem with apps was more profound. When people read news and features on electronic media, they expect stories to possess the linky-ness of the Web, but stories in apps didn't really link. The apps were, in the jargon of information technology, "walled gardens," and although sometimes beautiful, they were small, stifling gardens. For readers, none of that beauty overcame the weirdness and frustration of reading digital media closed off from other digital media.
Without subscribers or many single-copy buyers, and with no audiences to sell to advertisers, there were no revenues to offset the incremental costs of app development. With a couple of exceptions, publishers therefore soured on apps. The most commonly cited exception is Condé Nast, which saw its digital sales increase by 268 percent last year after Apple introduced an iPad app called Newsstand that promoted the New York publisher's iPad editions. Still, even 268 percent growth may not be saying much in total numbers. Digital is a small business for Condé Nast. For instance, Wired, the most digital of Condé Nast's titles, has 33,237 digital replica subscriptions, representing just 4.1 percent of total circulation, and 7,004 digital single-copy sales, which is 0.8 percent of paid circulation, according to ABC.

From Twitter:

Bookseller Waterstones will begin selling Amazon's Kindle e-readers. Critics think the move is mad Economist

Alain de Botton to make highbrow porn Telegraph

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Auckland Harbor 1972

The date is a bit of a guess since this is one of those images that wasn't date stamped.  This would have been taken from a plane as we landed in Auckland on a return leg from Australia.  In the old days most children would have been given a look into the cockpit and would have met the captain but of course not only has the glamor and uniqueness of air travel dissipated but with security you are unlikely to set eyes on the flight crew at all now a days.

I distinctly remember on one of these trips back to New Zealand, not only was I allowed to visit the cockpit but they let me stay right through landing.  Not bad.  When I was remembering this a few months ago with PND Senior he told me once how he went up to the cockpit on an Air India jumbo and the captain was sitting all alone in the cabin with his feet up on the dash looking out the window.  He was spooning his soup out of a cup and my father asked, "Who's flying the plane?" and the pilot says "Don't worry the autopilot thing is on'.

A more simple time.

Another weekly image from my archive. Click on it to make it larger.

In addition to the images I've posted on Flickr and those I've periodically posted on PND, I have now produced a Big Blurb Book: From the Archive 1960 -1980 of some of the images I really thought were special.

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BISG's Student Attitudes to Content in Higher Ed

The BISG has released the second installment of their report on student attitudes

Now available to purchase (and at significant discounts for BISG members), Student Attitudes Toward Content in Higher Education, Volume Two, Final Survey Report explores trends and issues in the higher ed market during the 2011-2012 academic year.

This report also integrates some data from BISG’s recent study of Faculty Attitudes, offering a unique comparison between student and faculty perspectives.

Key findings include:

• Nearly 48 percent of students feel Integrated Learning Systems help with their studying; compare that with 45 percent for the core print textbook and just 37 percent for the e-text.
• Although relatively few students have tablet devices — just 16 percent compared with 76 percent who own laptops — many are planning to acquire them, and are looking for course content available on these devices.
• Textbook rentals are on the rise, showing an increase from 8 percent last year to 11 percent this year. Meanwhile, acquisition from Amazon.com rose from 25 to 31 percent, while on-campus bookstores fell from 52 to 46 percent.

In addition to the PDF Survey Report, data from Student Attitudes is available as a dynamic online data set via Real-Time Reporting: a web-based tool which displays raw data – drillable, sortable, and accessible whenever you want it.

Click here to purchase now.

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MediaWeek (V5, N21): Internet Commons, Mass 'Professoriat", IP Markets, New ASCAP/BMI Model + More

In The Atlantic, Bill Davidow wonders whether like the sea, the internet will be 'over fished' (The Atlantic)

Free markets are the most efficient and best mechanism for managing most economic activity. But when they operate in arenas in which they can exploit the commons, the logic of the free market dictates that they will destroy it. Virtual retailers, for instance, live off their bricks-and-mortar brethren. They encourage customers to search for clothes that fit properly in retail stores that pay property taxes and other overhead costs, and then to buy them online. In the process, they get fat off the bricks-and-mortar commons.
One of the areas I see being chewed up at an alarming speed is privacy -- a vital aspect of our personal commons. We spend hours filtering out junk email, updating passwords, and worrying about stolen identity.
In the physical world, laws protect our privacy, and the cost of gaining access to us is high. (It costs a lot to send physical mail.) Physical spying is expensive. But in the virtual world, we have few property rights, few laws to protect us, and spying is almost free.

Give all the negative public relations that Elsevier has faced recently is a very different model on the horizon?  (The American Interest):

But the thought does occur to one: while it is relatively easy to see how public universities might want to support academic research in the natural sciences and economics, just how much do the taxpayers want to contribute toward the production of research of questionable utility in softer fields? And if the answer is, as I suspect it will increasingly be, that the taxpayers don’t want to shell out for these costs, how many fewer professors will our university systems employ?
It is much more fun to complain about the pirates of Elsevier than it is to think about the future of the mass professoriat, but I suspect that university faculties might soon find it necessary to adjust to a new set of public priorities. Fifteen years ago journalists thought that the internet wasn’t a serious issue for their field; today many of the journalists who once scoffed at the net are now unemployed.

A fascinating look at a new way to 'market' and trade intellectual property (Economist):

All of which makes this a good time to launch a new approach to trading intellectual property, says Gerard Pannekoek, the boss of IPXI, a new financial exchange that lets companies buy, sell and hedge patent rights, just like any other asset. The idea is to offer a patent or group of patents as “unit licence rights” (ULRs), which can be bought and sold like shares. A ULR grants a one-time right to use a particular technology in a single product: a new type of airbag sensor in a car, say. If a company wants to use the technology in 100,000 cars, it buys 100,000 ULRs at the market price. ULRs are also expected to be traded on secondary markets.

Capturing the 'data exhaust' from satellite transmissions to reinvent the way music royalties are made (WSJ):

So in 2009 , he and business partner and composer Chris Woods launched TuneSat, a startup that uses digital technology to monitor satellite TV signals from around the world and keep track of how music is being used in theme songs,  advertisements, background soundtracks and other broadcast situations. Schreer is CEO and Woods is COO of the company. The value of the new Big Data driven part of his business has the potential to eclipse revenue from the core business of composing and producing music.
Beyond that, they say TuneSat may help disrupt the performing rights business, an industry with $2 billion in revenue in U.S. and $9 billion worldwide, by putting powerful algorithms directly in the hands of copyright owners that allow them to scour and analyze the use of their work across the entire national TV market. A web-based application allows subscribers to access TuneSat’s servers and its proprietary analytic tools, in the process allowing them to bypass traditional royalty rights organizations, if they choose.

Stop sending free textbooks complains higher ed faculty (IHEd):

When I arrived at my office door one morning, arms full of books and lunch and workout clothes, and found my path blocked by an unsolicited box of books, the sales rep found my breaking point. I replied with a sharply but politely worded cease-and-desist message, making as clear as possible that I would disqualify unsolicited texts from consideration for adoption in our program because of my concern.

There are probably 50 pounds of never-requested and never-to-be-used textbooks in my office. I’d prefer 50 pounds of just about anything else. Fifty pounds of in-the-shell roasted peanuts to eat in my office; 50 pounds of water balloons to rain down on the heads of students who smoke under my frequently open office window.

From the twitter:

Is the New York Public Library Seizing the Future or Renouncing Its Past? NYTIMES

Amazon consumer book reviews as reliable as media experts Guardian

University of British Columbia opts out of Access Copyright agreement UBC 

Carlos Fuentes' Worldcat Identity page Worldcat

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Fish Story

One day in January 1974, my father went out ocean fishing for the first time and came back with this fish.  It was the first of the Marlin season and he got himself a nice silver plate.  Earlier in the day, I am not sure he even knew such an award was in the offing.  Almost right after this picture was taken, the whole fish fell off the back of the boat and started to float out to sea.  One of the fishermen (that is, someone somewhat more expert than my father - said fish excluded,of course) had to jump into the harbor, chase it down and lung it back to the boat.

Several years later a cleaner took Ajax powder to the awarded plate and it had to be re-plated.  So there you are our family fish story.

Another weekly image from my archive. Click on it to make it larger.

In addition to the images I've posted on Flickr and those I've periodically posted on PND, I have now produced a Big Blurb Book: From the Archive 1960 -1980 of some of the images I really thought were special.

Read More

Media Week (V5, N20) Georgia State Opinion Round-Up

For those interested in how discussions are setting up around the Georgia State eReserves Case:

Kevin Smith at Duke (perhaps the first to write in detail about the opinion):

Overall there is good news for libraries in the decision issued late yesterday in the Georgia State University e-reserves copyright case.  Most of the extreme positions advocated by the plaintiff publishers were rejected, and Judge Evans found copyright infringement in only five excerpts from among the 99 specific reading that had been challenged in the case.
That means she found fair use, or, occasionally, some other justification, in 94 instances, or 95% of the time.
But that does not make this an easy decision for libraries to deal with.  Indeed, it poses a difficult challenge for everyone involved, it seems.  For the Judge, it was a monumental labor that took almost a year to complete.  She wrote 350 pages, working through a raft of legal arguments first and then painstakingly applying them to each of the challenged readings.  And for me, with a week’s vacation pending, I am trying to make sense of this tome before I leave, which is why I am writing this at four in the morning on a Saturday (please excuse typos!).

James Grimmelmann: Inside the Georgia State Opinion

Thus, the operational bottom line for universities is that it’s likely to be fair use to assign less than 10% of a book, to assign larger portions of a book that is not available for digital licensing, or to assign larger portions of a book that is available for digital licensing but doesn’t make significant revenues through licensing. This third prong is almost never going to be something that professors or librarians can evaluate, so in practice, I expect to see fair-use e-reserves codes that treat under 10% as presumptively okay, and amounts over 10% but less than some ill-defined maximum as presumptively okay if it has been confirmed that a license to make digital copies of excerpts from the book is not available.
The most interesting issue open in the case is the scope of any possible injunction. Given that Georgia State won on sixty-nine out of seventy-four litigated claims, while the publishers won on only five, I expect that the any injunction will need to be rather narrow. But given how amenable the court’s proposed limits are to bright-line treatment, it is likely that the publishers will push to write them in to the injunction.
My bottom line on the case is that it’s mostly a win for Georgia State and mostly a loss for the publishers. The big winner is CCC. It gains leverage against universities for coursepack and e-reserve copying with a bright-line rule, and it gains leverage against publishers who will be under much more pressure to participate in its full panoply of licenses.

 ARL: GSU Fair Use Decision Recap and Implications (PDF) Hat tip Brantley

In addition to the statutory factors, courts are required to consider how a
proposed fair use serves or disserves the purpose of copyright, which is to
encourage the creation and dissemination of creative works. The judge’s
reasoning here is perhaps the most compelling and shows that she took into
account some key facts about the academic publishing market that are often
overlooked in these discussions. Based on testimony from GSU professors, the
judge finds that academic authors and editors are motivated by professional
reputation and achievement and the advancement of knowledge, not royalty
payments, and that any diminution in royalty payments due to unlicensed
course reserves would have no effect on their motivation to produce
scholarship.8 Indeed, because the authors of such works are also the primary
users of course reserve systems, they would experience a net benefit from fair
use in that context. The court emphasizes that publishers receive so little income
from licensing excerpts as a percentage of their overall business that the slight
diminution caused by allowing unlicensed posting to course reserves would
have no cognizable effect on their will or ability to publish new works.
Unfortunately, these additional considerations do not enter into the individual
determinations. Rather, the court finds that any uses that stay within her
framework will serve the purposes of copyright, and those that stray beyond it
will disserve them.

 In Some Leeway, Some Limits over at Inside Higher Ed:

While the legal analysis may take time, both publishers and academic librarians have reacted strongly throughout the case. Publishers argued hat their system of promoting scholarship can't lose copyright benefits. Judge Evans in her decision noted that most book (and permission) sales for student use are by large for-profit companies, not by nonprofit university presses. But the Association of American University Presses has backed the suit by Cambridge and Oxford, saying that university presses "depend upon the income due them to continue to publish the specialized scholarly books required to educate students and to advance university research."
Many librarians, meanwhile, have expressed shock that university presses would sue a university for using their works for teaching purposes. Barbara Fister, a librarian at Gustavus Adolphus College and an Inside Higher Ed blogger, tweeted Friday night: "It still boggles my mind that scholarly presses are suing scholars teaching works that were written to further knowledge."
The reserve readings at the crux of the dispute are chapters, essays or portions of books that are assigned by Georgia State professors to their undergraduate and graduate students. (While the readers are frequently referred to as "supplemental," they are generally required; "supplemental" refers to readings supplementing texts that the professors tell students to buy.) E-reserves are similar to the way an earlier generation of students might have gone to the library for print materials on reserve. The decision in this case notes a number of steps taken by Georgia State (such as password protection) to prevent students from simply distributing the electronic passages to others.

The Chronicle of Higher Ed: "Mostly favors Georgia State":

"My initial reaction is, honestly, what a crushing defeat for the publishers," said Brandon C. Butler, the director of public-policy initiatives for the Association of Research Libraries. Given how few claims the publishers won, "there's a 95 percent success rate for the GSU fair-use policy." The ruling suggests that Georgia State is "getting it almost entirely right" with its current copyright policy, he said.
The three publishers brought their suit in April 2008. The Association of American Publishers and the Copyright Clearance Center, which licenses content to universities on behalf of publishers, helped foot the bill.
In their complaint, the plaintiffs alleged that Georgia State went well beyond fair use in how much copyrighted material it allowed faculty members to post online for students. The university denied the claim and overhauled its e-reserves policy in late 2008, after the lawsuit was brought. As a state institution, it also invoked sovereign immunity, which meant that the publishers would have a harder time seeking damages.

Publisher's Weekly: AAP Statement on the Opinion

At the same time, we are disappointed with aspects of the Court's decision.  Most importantly, the court failed to examine the copying activities at GSU in their full context.  Many faculty members have provided students with electronic anthologies of copyrighted course materials which are not different in kind from copyrighted print materials.

In addition, the court's analysis of fair use principles was legally incorrect in some places and its application of those principles mistaken.  As a result, instances of infringing activity were incorrectly held to constitute fair use. Publishers recognize that certain academic uses of copyrighted materials are fair use that should not require permission but we believe the court misapplied that doctrine in certain situations.

The Court’s ruling has important implications for the ongoing vitality of academic publishing as well as the educational mission of colleges and universities. Contrary to the findings of the Court, if institutions such as GSU are allowed to offer substantial amounts of copyrighted content for free, publishers cannot sustain the creation of works of scholarship. The resources available to educators will be fundamentally impaired.

 Ars Technica: Fair Use is Hard

So—crushing victory for Georgia State, whose professors can now dance gleefully through the ash of their foes in publishing? Not quite. After years of litigation, the case came down to 75 particular items that the publishers argued were infringing. Five unlicensed excerpts (from four different books) did exceed the amount allowed under factor three above. These books include The Sage Handbook of Qualitative Research in both its second and third editions, along with The Power Elite and the no-doubt-scintillating tome Utilization-Focused Evaluation (Third Edition).
While the university had issued a 2009 guide designed to help faculty know when they needed a license for excerpts, the judge found that the policy "did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book."
Still, copyright and fair use can be murky, and the judge found no bad faith on the school's part, concluding: "The truth is that fair use principles are notoriously difficult to apply."

 Inside Higher Ed With Some Updates

Update, 5/15: In a conference call with reporters, Rich, along with Tom Allen, the president of AAP, disputed the popular notion that the publishers had "lost" the lawsuit. Before the publishers brought the suit four years ago, Georgia State's standards for e-reserve copying were far more permissive. Only afterward, in anticipation of a court trial, did Georgia State tighten its e-reserves policies, Rich said. During the trial, Judge Evans said she would only consider the fair use merits of instances of alleged infringement that occurred during a specific period after Georgia State had overhauled its practices.
Therefore, the judge's ruling was based on legal parsing of examples "that nobody thought would be the focal point of this lawsuit when it was brought,” Rich said. “So for Georgia State to declare victory as to those kinds of works is a false trail.”
While the scorecard might not have favored the publishers, the lawsuit forced Georgia State to shore up its e-reserve practices and confirmed that publishers' copyright protections do indeed apply to e-reserves. And that, Rich said, is not small victory. The lawsuit "was never about drawing the line at this point or that point, but to address a system that basically snubbed its nose at copyright," he said. “At a very fundamental level, that issue has been affirmatively addressed."

My contribution: Georgia Opinion - I see opportunity

Judge Evans has plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side.  She notes specifically, Copyright Clearance Center which can deliver a permissions fee to the user (faculty, librarian, etc.) via Rightslink and, although CCC does not hold the actual content, publishers will be motivated to create digital repositories at a disaggregated level.

Background to the Case:

Chronicle of Higher Ed: What's at Stake in the Georgia Case (2011):

A closely watched trial in federal court in Atlanta, Cambridge University Press et al. v. Patton et al., is pitting faculty, libraries, and publishers against one another in a case that could clarify the nature of copyright and define the meaning of fair use in the digital age. Under copyright law, the doctrine of fair use allows some reproduction of copyrighted material, with a classroom exemption permitting an unspecified amount to be reproduced for educational purposes.
At issue before the court is the practice of putting class readings on electronic reserve (and, by extension, on faculty Web sites). Cambridge, Oxford University Press, and SAGE Publications, with support from the Association of American Publishers and the Copyright Clearance Center, are suing four administrators at Georgia State University. But the publishers more broadly allege that the university (which, under "state sovereign immunity," cannot be prosecuted in federal court) has enabled its staff and students to claim what amounts to a blanket exemption to copyright law through an overly lenient definition of the classroom exemption. The plaintiffs are asking for an injunction to stop university personnel from making material available on e-reserve without paying licensing fees. A decision is expected in several weeks. The Chronicle asked experts in scholarly communications what the case may mean for the future:

 Library Journal (2010):

According to a ruling on October 1, the closely watched Georgia State University (GSU) ereserves lawsuit will come down to whether the named defendants participated in the specific act of "contributory infringement," as two other original accusations were removed from the case.

This narrows the scope of the charges lodged by the publisher plaintiffs—Oxford University Press, Cambridge University Press, and SAGE Publications—and has Fair Use advocates cautiously optimistic as the case moves closer to trial.

In a blog post, library copyright watchdog and Duke Scholarly Communications Officer Kevin Smith wrote that he was "surprised at how favorable the ruling issued yesterday is to Georgia State; even though the Judge clearly expects to go to trial, there is a lot in her ruling to give hope and comfort to the academic community."

Barring a narrow settlement, the case could have a broad effect on academic library practice. If GSU's current policies are affirmed, libraries nationwide with similar digital reserves policies will be reassured if not emboldened. Should the plaintiffs prevail, however, there is likely to be a considerable chill on Fair Use deliberations as libraries reconsider the digital access they grant to copyrighted materials.

Two levels of infringement tossed out
Judge Orina Evans of Federal District Court in Atlanta ruled against all of the plaintiffs' motions for summary judgment, and granted two of the defendants' three counter-motions.

This ruling essentially holds there to be insufficient evidence to show that the named defendants (GSU's president Mark Becker, provost, associate provost for technology, and dean of libraries, Charlene Hurt) committed any acts of infringement, thus ruling out a charge of "direct infringement."

Likewise, Judge Evans similarly determined that there was no evidence of any profit directly from infringement committed by librarians under their supervision, excluding "vicarious infringement." 

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Georgia On My Mind: Fair Use, Digital Availability & Reasonable Pricing

In April 2008, three publishers Oxford University Press, Cambridge University Press and Sage, filed suit against Georgia State University (GSU) for copyright infringement.  The Publishers charged that university officials had facilitated and encouraged the posting of the publishers' works on university websites and, consequently, made this copyright material available for students without compensation to the publisher.  While only three publishers were part of the suit, the case has been closely watched by both sides in the case: The three publishers being generally representative of all academic and scholarly publishers and GSU as representative of educational institutions particularly academic libraries.  Suing your customers is a very unsavory practice and generally both frowned on and generally only taken as a last resort.  The publishers felt that this case represented a slippery slope in the expansion of the application "fair use" within academia that could fully undermine their own business models and was thus worth fighting despite the potential for negative fall-out.

The case as adjudicated is victory for GSU although there may be some significant caveats which will become be even more important as the publishing business accelerates towards more electronic availability and delivery.  Firstly, however this is how Judge Evans summed up the case (Copy at InfoDocket):

Of the 99 alleged infringements that Plaintiffs maintained at the start of trial, only 75 were submitted for post-trial findings of fact and conclusions of law. This Order concludes that the unlicensed use of five excerpts (of four different books) infringed Plaintiffs’ copyrights. The question now is whether Georgia State's 2009 Copyright Policy caused those infringements. The Court finds that it did, in that the policy did not limit copying in those instances to decidedly small excerpts as required by this Order. Nor did it proscribe the use of multiple chapters from the same book.  Also, the fair use policy did not provide sufficient guidance in determining the “actual or potential effect on the market or the value of the copyrighted work,” a task which would likely be futile for prospective determinations (in advance of litigation). The only practical way to deal with factor four in advance likely is to assume that it strongly favors the plaintiff-publisher (if licensed digital excerpts are available). The Court does believe that Defendants, in adopting the 2009 policy, tried to comply with the Copyright Act. The truth is that fair use principles are notoriously difficult to apply. Nonetheless, in the final analysis Defendants' intent is not relevant to a determination whether infringements occurred.

The publishers only proved five of the 99 infringements and will be very disappointed by this result.  Further, their financial claims may be marginalized later by the Judge; in which case, they are not likely to gain any significant financial 'reward' for these five infringements.  (Who would pay in any case is also a question since the Judge affirmed sovereign immunity but that's above my pay grade).

In her explanation, Judge Evans did present some important qualifications in her interpretation (based on the Campbell case which defined four criteria) of the fair use determination.

The most interesting interpretations to me were the following (pages 87-89): Firstly, on the amount of content that could be used under fair use, the Judge stated the following:

Where a book is not divided into chapters or contains fewer than ten chapters, unpaid copying of no more than 10% of the pages in the book is permissible under factor three. The pages are counted as previously set forth in this Order. In practical effect, this will allow copying of about one chapter or its equivalent. Where a book contains ten or more chapters, the unpaid copying of up to but no more than one chapter (or its equivalent) will be permissible under fair use factor three.

That suggests to me that publishers will be encouraged to disaggregate their content into chunks so that each chapter stands independently.  Hard to do in print, this is entirely possible electronically (as part of the publishers digital strategy).  Which brings me to the second item of interest in the case:

Unpaid use of a decidedly small excerpt (as defined under factor three) in itself will not cause harm to the potential market for the copyrighted book. That is because a decidedly small excerpt does not substitute for the book. However, where permissions are readily available from CCC or the publisher for a copy of a small excerpt of a copyrighted book, at a reasonable price, and in a convenient format (in this case, permissions for digital excerpts), and permissions are not paid, factor four weighs heavily in Plaintiffs' favor. Factor four weighs in Defendants' favor when such permissions are not readily available.

Judge Evans has plainly stated that if a publisher's chapter is readily and easily available and the permission is set at a "reasonable price" then the law comes down on the publisher's side.  She notes specifically, Copyright Clearance Center which can deliver a permissions fee to the user (faculty, librarian, etc.) via Rightslink and, although CCC does not hold the actual content, publishers will be motivated to create digital repositories at a disaggregated level.

Anything connected with content and digital continues to move apace and who knows what the practical impact of this ruling will be as more and more content is digitally available and traditional frameworks around which content is organized begin to erode. The traditional monograph and textbook construct will dissipate and this ruling might seem to give that transition impetus.

CCC has been trying to move institutions towards campus wide licenses and this business model has proceeded fittingly over the past three or four years.  I suspect this program will become much more interesting to many more administrators given this ruling.  In Canada, Access Copyright has attempted to unilaterally apply the all-in-model for schools there but has faced tough opposition over the pricing structure.  Some schools have been asked to pay several multiples of the amounts they were paying under the old pay-as-you-go model.  As the kinks are worked out, Access Canada is likely to sign up most of the schools in Canada to this program. The UK has had the universal license program from many years.

There's no doubt the application of fair use will continue to generate friction between content owners and (in this case) educators and librarians but then technology continues to advance as well making all of this content both accessible and trackable.  Publishers might be able to live with 10% fair use if they can track and monitor the users but to do that they will probably have to universally participate in agencies like CCC and Access Copyright. 

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Shining Star of Hong Kong Harbor

This image from September 1969 as the family was in the process of heading from Bangkok to new digs in Auckland, New Zealand.

No trip to Hong Kong even now should be complete without at least one trip over the harbor on one of the famous Star ferries.  Still ridiculously cheap, it's the only way to take in the city skyline and all the hustle and bustle on the water.  I am fairly certain that housing has spread mostly up and over that ridge in the background.





Another weekly image from my archive. Click on it to make it larger.


In addition to the images I've posted on Flickr and those I've periodically posted on PND, I have now produced a Big Blurb Book: From the Archive 1960 -1980 of some of the images I really thought were special.

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MediaWeek (V4, N19): HuffPo's Aggregation Model, Espresso Books, FT on the state of Publishing +More

Apparently, my feedburner RSS feed went wonky about a month ago and since I don't use the feed I didn't notice.  I wondered why a few people mentioned I had been lazy over the past few weeks.  Now I know.  So, if you are paying attention to this post you will probably also see a month's worth of 'new' blog posts.

Here are the posts in summary:

MediaWeek (V4, N19): HuffPo's Aggregation Model, Espresso Books, FT on the state of Publishing +More

Kabul Chevelle 1973

Corporate Data Strategy and The Chief Data Officer

Some Soft Nooky

MediaWeek (V4, N18): Cloud Education, Navigating LBF, NYPL Rennovations, Pottermore + More

PND Mascot Charlie

MediaWeek (V4, N17): Academic Publishing, Canadian Copyright, Linked Data + More

MediaWeek (V4,N16): Texas Custom, Apps For Education, William Boyd, Official Chinese Authors, + More

Hong Kong Harbor September 1968

Going Digital Doesn't Mean Lower Prices

MediaWeek (V4, N15): NYPublic remodels, Creative Thought, Gunter Grass, Pew eReader Study + More

 

 

 

 

 

 

 

 

 

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MediaWeek (V5, N19): HuffPo's Aggregation Model, Espresso Books, FT on the state of Publishing +More

From the Columbia Journalism Review a long review of how Huff Po came to define the news aggregation 'business' (CJR)

Before its purchase by AOL in February 2011, HuffPost was not a property that had produced much in the way of revenue; it had posted a profit only in the year before the sale—the amount has never been disclosed—on a modest $30 million in revenue. Aside from scoops from its estimable Washington bureau, it did little in the way of breaking stories, the industry’s traditional pathway to recognition.
Huffington Post, which had mastered search-engine optimization and was quick to understand and pounce on the rise of social media, had been at once widely followed but not nearly so widely cited. But that is likely to change now that it can boast of a Pulitzer Prize for national reporting—the rebuttal to every critic who dismissed HuffPost as an abasement to all that was journalistically sacred.
Arianna Huffington liked to boast that the site that bore her name had remained true to its origins. The homepage’s “splash” headline still reflected a left-of-center perspective; it had thousands of bloggers, famous and not, none of them paid; and while there was ever more original content, especially on the politics and business pages, the site was populated overwhelmingly with content that had originated elsewhere, much of it from the wires (in fairness, an approach long practiced by many of the nation’s newspapers). But Huffington Post had evolved into something more than the Web’s beast of traffic, blogging, and aggregation. These days, Arianna Huffington has a regular seat at the politics roundtable, which speaks not only to her own facility on TV but also to the prominence her organization enjoys.
Power can be felt, even if it defies measurement. By the winter of 2012, Huffington Post could lay claim to a widely shared perception of its growing influence—the word Huffington prefers to power, which, she says, sounds “too loaded.” For better or, in the eyes of its critics, worse, Huffington Post had assumed the position of a media institution of consequence.

Taking a look at the Espresso Book Machine at Powells (Mercury)

When I was at Powell's, before I went up to look at The Machine, I spent a few minutes talking myself down from buying a Poe Ballantine novel published by local house Hawthorne Books. I almost bought the book half because I want to read it, and half because it was pretty—Hawthorne puts out lovely books with distinctive covers and classy French flaps (when a soft-cover book folds in on the sides like a dust jacket). It's often suggested that with the increasing popularity of ebooks, publishers should/will move toward the McSweeney's model of publishing, which emphasizes "book-as-object." The Book Machine is a step in the opposite direction, back to book-as-collection-of-paper-that-has-words-on-it.
Mercury Film Editor Erik Henriksen—a regular Kindle user—expressed extreme bafflement at the existence of such a machine. I'd use it, though: Despite owning and liking a Kindle, I still have a stubborn preference for reading in print, and all other things being equal (price, convenience, availability) would always take a print book over a digital one. Plus, being able to create physical copies of hard-to-find/out-of-print titles is pretty amazing in its own right.

Warren Adler op ed in (you guessed it) the HufPo on The Coming Battle of eReaders (HuffPo):

There are thousands of categories that e-books support, running the gamut from instruction to politics and every thing in between and beyond. Works of the imagination, meaning fiction, cover numerous genres aimed to specific reader requirements. The so-called mainstream novel, the work I have labored to define, is the toughest category to monetize, especially in today's environment, which tempts creative writers to replicate and attracts the self-published.
The mainstream novel is also challenging to the author, who must be branded as a serious contributor in order to attain enough status to attract interest and sales where outlets for recognition and discoverability are shrinking.
While it was easy to make a prediction about the future of e-books it is no simple matter to predict the fate of the serious novelist in the ever-accelerating rough and tumble world of e-books. I suspect that most authors in this category will have to shoulder the task of relying on themselves to publicize, advertise, promote, and project his or her authorial name and titles, whether his or her books are published by a traditional publisher or via self-publishing. Authors of this material will either have to learn how to promote their own works or risk the ultimate curse of artistic endeavor... obscurity and dismissal.

I wasn't sure whether to pull this reference to the FT on the current landscape in publishing or not.  eBooks are big, Technology is a driver, publishers being sued, etc, etc.  You be the judge (FT):

As deep-pocketed tech companies tout ebooks to sell Windows 8 devices or Kindle Fires, iPads or gadgets running Google’s Android software, reading habits will change further, with profound consequences for retailers, publishers, authors and consumers.
The pace of change is already dramatic. According to PwC, the consultancy, US consumer ebook sales will grow 42 per cent to $2.5bn this year, or 11 per cent of the American consumer books market. But this may understate the growth. The Association of American Publishers said on Friday that ebooks accounted for 31 per cent of all adult trade sales in February, up from 27 per cent in the same period a year ago, with their share of the children’s and young adult market jumping from 10 per cent to 16 per cent in a year.
In Europe, ebook sales will grow 113 per cent, PwC estimates, but will end the year as less than 2 per cent of the market. In Asia, ebooks will be more than 6 per cent of the market by December, it predicts.
However, this comes at a heavy cost to print. Adult hardback sales fell 17.5 per cent last year, according to the Association of American Publishers. In the UK, The Publishers Association said this week that consumer ebook sales leapt 366 per cent in 2011 to 6 per cent of the total, but print declines left the total market down 2 per cent.

Joking about textbook prices (Link)

From my Twitter feed this week

The Man Who Revitalized 'Doctor Who' And 'Sherlock' http://n.pr/KsTaYF

BISG’s Making Information Pay Conference:Beyond “Business-as-Usual”;The Age of Big Data,by Lorraine Shanley /PubTrends http://bit.ly/IHI6sK

A universal digital library is within reach http://www.latimes.com/news/opinion/commentary/la-oe-samuelson-google-books-and-copyright-20120501,0,2442760.story

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Kabul Chevelle 1973

Somewhere downtown Kabul on our visit there in 1973.  I am not actually sure of the year but it was around this time.  Not sure who the two guys in the first car are but they look like US Government types.  I don't believe they were connected with us at all.  Notice the traffic cop on the far right.  There is something written on the top of the building left of center but I can't make it out.  That would probably identify the location.

Another weekly image from my archive. Click on it to make it larger.


In addition to the images I've posted on Flickr and those I've periodically posted on PND, I have now produced a Big Blurb Book: From the Archive 1960 -1980 of some of the images I really thought were special.

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There were several discussion points around data at today's BISG Making Information Pay session and I was reminded of a series of posts I published last September about the importance of having a data strategy. Here are is the first of those posts with links at the bottom for the other three articles in the series.

There were several discussion points around data at today's BISG Making Information Pay session and I was reminded of a series of posts I published last September about the importance of having a data strategy. Here are is the first of those posts with links at the bottom for the other three articles in the series.

Corporate Data Strategy and The Chief Data Officer

Are you managing your data as a corporate asset? Is data – customer, product, user/transaction – even acknowledged by senior management? Responsibility for data within an organization reflects its importance; so, who manages your data?

Few companies recognize the tangible value of the data their organizations produce and generate. Some data, such as product meta-data, are seen as problematic necessities that generally support the sale of the company’s products; but management of much of the other data (such as information generated as a customer passes through the operations of the business) is often ad-hoc and creates only operational headaches rather than usable business intelligence. Yet, a few data aware companies are starting to understand the value of the data generated by their companies and are creating specific business strategies to manage their internal data.

Establishing an environment in which a corporate data strategy can flourish is not an inconsequential task. It requires strong, active senior-level sponsorship, a financial commitment and adoption of change-management principles to rethink how business operations manage and control internal data. Without CEO-level support, a uniform data-strategy program will never take off because inertia, internal politics and/or self-interest will conspire to undermine any effort. Which raises a question: “Why adopt a corporate data strategy program?”

In simple terms, more effectively managing proprietary data can help a company grow revenue, reduce expenses and improve operational activities (such as customer support.) In years past, company data may have been meaningless in so far that businesses did not or could not collect business information in an organized or coordinated manner. Corporate data warehouses, data stores and similar infrastructure improvements are now commonplace and, coupled with access to much more transaction information (from web traffic to consumer purchase data), these technological improvements have created environments where data benefits become tangible. In data-aware businesses, employees know where to look for the right data, are able to source and search it effectively and are often compensated for effectively managing it.  

Recognizing the potential value in data represents a critical first-step in establishing a data strategy and an increasing number of companies are building on this to create a corporate data strategy function.

Businesses embarking on a data-asset program will only do so successfully if the CEO assigns responsibility and accountability to a Corporate Data Officer. This position is a new management role and not additive to an existing manager’s responsibilities (such as the head of marketing or information technology). In order to be successful, this position carries with it the responsibility for organizing, aggregating and managing the organization’s corporate data to better effect communications with supply chain partners, customers and internal data users.

Impediments to implementing a corporate data strategy might include internal politics, inertia and a lack of commitment, all of which must be overcome by unequivocal support from the CEO. Business fundamentals should drive the initiative so that its expected benefits are captured explicitly. Those metrics might include revenue goals, expense savings, return on investment and other, narrower measures. In addition, operating procedures that define data policies and responsibilities should be established early in the project so that corporate ‘behavior’ can be articulated without the chance for mis- and/or self-interpretation.

Formulating a three-year strategic plan in support of this initiative should be considered a basic requirement that will establish clear objectives and goals. In addition, managing expectations for what is likely to be a complex initiative will be vital. Planning and then delivering will enable the program to build on iterative successes. Included in this plan will be a cohesive communication program to ensure the organization is routinely made aware of objectives, timing and achievements.

In general terms, there are likely to be four significant elements to this plan: (1) the identification and description of the existing data sources within an organization; (2) the development of data models supporting both individual businesses and the corporate entity; (3) the sourcing of technology and tools needed to enact the program to best effect; and then, finally, (4) a progressive plan to consolidate data and responsibility into a single entity. Around this effort would also be the implementation of policies and procedures to govern how each stakeholder in the process interacts with others.

While this effort may appear to have more relevance for very large companies, all companies should be able to generate value from the data their businesses produce. At larger companies the problems will be more complex and challenging but, in smaller companies, the opportunities may be more immediate and the implementation challenges more manageable. Importantly, as more of our business relationships assume a data component, data becomes integral to the way business itself is conducted. Big or small, establishing a data strategy with CEO-level sponsorship should become an important element of corporate strategy.

The following are the other articles in the series:

2: Setting the Data Strategy Agenda

3: Corporate Data Program: Where to Start?

4: Strategically Managing Data for Long Term Benefit

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Some Soft Nooky

I don’t get the strategy: Sure, I understand that Barnes & Noble wanted to extract the considerable hidden value from their digital (Nook) operations and were seeking a way to do that but, what is the Microsoft play here and should publishers’ be more worried than excited? 

The Nook business is growing at 30+% while physical store sales grew around 2% - which wouldn’t seem so bad if not for the fact that Borders shut for business, and it has long been reported that B&N wanted to carve out the digital business.  Along comes Microsoft and, in a somewhat opaque deal, we now have a “New Co” business worth almost $2bill and in which Microsoft will invest $300+ million.  That amount seems relatively small to a company with the resources of Microsoft and yet this deal is being lauded as Microsoft’s big play into the content business.  Competing with iTunes (mentioned by Forester) seems a big ask given Amazon’s head start although some suggest the Nook is a good example of how to come from nowhere to compete with a bigger player (Kindle).

The nature of the cooperation between B&N/Nook and Microsoft will be borne out over the coming years.  Some investors in “New CO” might be hoping Microsoft stays in Seattle and away from the Nook business since Microsoft’s experience in media content hasn’t been so stellar.  Examples such as their digitization efforts launched to chase Google might have been technically superior but the effort never seemed to get out of second gear.   Each successive time they were lapped by Google their commitment waned until they finally pulled the plug.  Zune was a similar experience: Some people loved the iPod-like device but a thirteen year old girl once summed up the Zune by saying ‘everyone knows when you have to advertise something it’s no good’.

Looking further back, a greater danger to publishers might exist in the example of Encarta, the encyclopedia Microsoft bundled with millions of PCs and in the process effectively destroyed the traditional encyclopedia business.  The traditional publishing business in its’ transition from print to electronic distribution has already witnessed significant price deflation and Microsoft in an effort to sell more hardware (X-Box) and software licenses is likely to jump on the price deflation bandwagon established by Amazon. 

Will Microsoft show impunity to traditional models as they did in the Encarta years?  Perhaps, but their objectives might be simpler: Gaining an anchor tenant to support their mobile strategy.  To me, books are long since a killer application (when was the last time you heard that phrase) moreover, I just don’t see how the relationship with Microsoft benefits Barnes & Noble/Nook other than giving the company a huge valuation on a business that was buried under the vestiges of the physical store model.  I guess you have to start somewhere but will Microsoft and their $300mm influence the trajectory that Nook would have achieved anyway?  I just don’t see it.

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