<div dir="ltr">Rather than retype everything I'm going to copy and paste from IRC for this:<div><br></div><div>
<p class="">eeevil</p>
<p class="">dbs / <span class="">RoganH</span>: heh ... I just brought up that point on the EOB list... ;)</p>
<p class="">10:54</p>
<p class="">RoganH</p>
<p class="">eeevil: that's actually debatable</p>
<p class="">10:54</p>
<p class="">RoganH</p>
<p class="">eeevil: and unfortunately recent court rulings would be against us there</p>
<p class="">10:54</p>
<p class="">eeevil</p>
<p class=""><span class="">RoganH</span>: the fact-ness of MARC, you mean?</p>
<p class="">10:54</p>
<p class="">RoganH</p>
<p class="">eeevil: yep.</p>
<p class="">10:55<br></p>
<p class="">RoganH</p>
<p class="">eeevil: the descriptive versus expressive work debate is an old one. For example, rankings used to be considered descriptive and facts but recent court rulings have said if a unique process discovered them then they're not.</p>
<p class="">10:55<br></p>
<p class="">eeevil</p>
<p class=""><span class="">RoganH</span>: I'm behind the times, then! IIRC, it was just 2005-ish when the consensus was "they're facts" ... but, 9 years is a long time</p>
<p class="">10:55</p>
<p class="">RoganH</p>
<p class="">eeevil: so if you have a unique process to creating a MARC .... now, another court may rule the opposite way</p>
<p class="">10:56</p>
<p class="">RoganH</p>
<p class="">eeevil: this stuff is up in the air, there's not absolute black and white on it</p>
<p class="">10:56<br></p>
<p class="">eeevil</p>
<p class="">hrm... I thought Fiest did away with the process argument... but /again/ IANAL ;)</p>
<p class="">10:57<br></p>
<p class="">RoganH</p>
<p class="">eeevil: no, Fiest vs Rural established that a low enough amount of original work is not enough but each judge gets to rule what is above that threshold</p>
<p class="">10:58<br></p>
<p class="">RoganH</p>
<p class="">eeevil: now, me, I would rule that a MARC record is below that threshold and I can probably find 3 judges who would agree with me at least one that wouldn't</p>
<p class="">10:58</p>
<p class="">RoganH</p>
<p class="">eeevil: the question becomes which judge hears your case?</p>
<p class=""><br></p></div></div><div class="gmail_extra"><br><br><div class="gmail_quote">On Wed, May 14, 2014 at 10:52 AM, Mike Rylander <span dir="ltr"><<a href="mailto:mrylander@gmail.com" target="_blank">mrylander@gmail.com</a>></span> wrote:<br>
<blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">IANAL, nor on the EOB, but I've been following this discussion closely<br>
and I just want to inject a small point.<br>
<br>
The OCLC policy documentation, when discussing what is allowed or<br>
permitted, refers most often to "our catalog" or "the catalog". That<br>
implies (in the legal sense) that it is speaking of the collection (or<br>
a substantial portion thereof) as a whole, as opposed to a single<br>
record. Again, IANAL, but my understanding is that individual MARC<br>
records are considered facts, and thus not copyrightable in the US<br>
(and, indeed, many of OCLC's records derive substantially from record<br>
created by LoC, which are public domain by definition in the US). It<br>
seems, then, that OCLC's policy concern is with the wholesale<br>
harvesting of library catalogs, and not the distribution of individual<br>
records. This may be because they can't legally assert any control<br>
over individual records, or may be because the don't have any desire<br>
to do so; or I may simply be reading what I want into their policy<br>
statements ...<br>
<br>
For a little layperson background on compilation (database, catalog)<br>
vs underlying data (MARC records as facts), you can see:<br>
<a href="http://www.bitlaw.com/copyright/database.html" target="_blank">http://www.bitlaw.com/copyright/database.html</a><br>
<br>
With that, I'll go back to lurking!<br>
<div class="HOEnZb"><div class="h5"><br>
<br>
On Wed, May 14, 2014 at 10:30 AM, Rogan Hamby <<a href="mailto:rogan.hamby@gmail.com">rogan.hamby@gmail.com</a>> wrote:<br>
> I can easily imagine confusion playing a significant part in this. But, if<br>
> the policy Yamil pointed us to does in fact supersede the old one in full<br>
> then it's the one we have to make a decision based on in terms of it being<br>
> OCLC's position. Context is valuable but in legal matters only when there's<br>
> ambiguity in terms of an agreement to show intent or if there is an attempt<br>
> to show a party acting in bad faith.<br>
><br>
> Their FAQ further tightens down on their intent pretty clearly.<br>
> <a href="http://www.oclc.org/worldcat/community/record-use/policy/questions.en.html" target="_blank">http://www.oclc.org/worldcat/community/record-use/policy/questions.en.html</a><br>
><br>
> #10 on their FAQ further clarifies what is implied elsewhere that "[OCLC]<br>
> does not claim copyright ownership of individual records." The conservative<br>
> legal thing to do would be to gain access from a library who owns said<br>
> records to use them.<br>
><br>
> However I do a possible avenue in question 7 "A nonmember or agent<br>
> (commercial or noncommercial) is seeking permission to harvest or receive a<br>
> copy of our catalog that includes our extracted WorldCat data so it can<br>
> incorporate the data into its product or service." This would include the<br>
> subset in question though it would only include instances where the library<br>
> had holdings associated with those records. Neither descriptions 1 or 2<br>
> would apply to the Evergreen project as a legal entity. However,<br>
> description 3 of type of nonmember or agency lists criteria for allowing<br>
> entities excluded by 1 or 2 and among the terms lists terms "comparable"<br>
> (which lets a lower legal standard) and allows it when it further's OCLC's<br>
> public purpose, there are limitations that essentially prevent it from<br>
> harming WorldCat and additional exchange of value. Note, that this does not<br>
> have to be approved by OCLC and only has to be comparable (which is why I'm<br>
> not quoting whole sections). While there is not an exchange of services<br>
> there is a comparable exchange of value based on improved ILS QA. The<br>
> limitation would be the limited amount of records used. Clearly, we don't<br>
> need enough to come anywhere near to duplicating WorldCat for test data.<br>
> And OCLC's public purpose states that "we will work together to improve<br>
> access to the information held in libraries around the globe" which I think<br>
> Evergreen and Koha both do as open source projects.<br>
><br>
> Now, would I feel comfortable going forward with this argument? I would be<br>
> but I also tend to lean strongly towards the side of "information wants to<br>
> be free."<br>
><br>
><br>
><br>
> On Wed, May 14, 2014 at 9:21 AM, Dan Wells <<a href="mailto:dbw2@calvin.edu">dbw2@calvin.edu</a>> wrote:<br>
>><br>
>> The new policy does supersede the old, but I still feel the old provides<br>
>> important context. The original version of the new policy was much more<br>
>> severe, and raised quite a stir, and the language we have now was meant to<br>
>> be a compromise to the many (myself included) who felt we were losing<br>
>> significant freedoms the old policy allowed. Of course, in the process, the<br>
>> language became quite complicated, and I doubt even OCLC itself truly knows<br>
>> what is allowed and what is not (and hence their apparent unwillingness to<br>
>> give a straight answer).<br>
>><br>
>><br>
>><br>
>> Dan<br>
>><br>
>><br>
>><br>
>><br>
>><br>
>> Daniel Wells<br>
>><br>
>> Library Programmer/Analyst<br>
>><br>
>> Hekman Library, Calvin College<br>
>><br>
>> <a href="tel:616.526.7133" value="+16165267133">616.526.7133</a><br>
>><br>
>><br>
>> _______________________________________________<br>
>> eg-oversight-board mailing list<br>
>> <a href="mailto:eg-oversight-board@list.evergreen-ils.org">eg-oversight-board@list.evergreen-ils.org</a><br>
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>><br>
><br>
><br>
> _______________________________________________<br>
> eg-oversight-board mailing list<br>
> <a href="mailto:eg-oversight-board@list.evergreen-ils.org">eg-oversight-board@list.evergreen-ils.org</a><br>
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><br>
<br>
<br>
<br>
</div></div><span class="HOEnZb"><font color="#888888">--<br>
Mike Rylander<br>
| Director of Research and Development<br>
| Equinox Software, Inc. / Your Library's Guide to Open Source<br>
| phone: 1-877-OPEN-ILS (673-6457)<br>
| email: <a href="mailto:miker@esilibrary.com">miker@esilibrary.com</a><br>
| web: <a href="http://www.esilibrary.com" target="_blank">http://www.esilibrary.com</a><br>
</font></span></blockquote></div><br></div>