Deep Links and Commercial Use of Content

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A recent editorial in Library Journal by Chris Flegg, librarian at the University of Oxford, tells the story of Harvard Business Publishing‘s recent “pilot” to charge 30 academic institutions who were getting free copies of HBP content via deep links to EBSCOhost.

HBP identified the 30 by analyzing linking activity, using anecdotal evidence, and talking with faculty and administrators. Ultimately, all 30 showed a high level of usage of HBP materials through links to EBSCOhost.

Flegg points out a related case at the University of Georgia, which is being sued by SAGE Publications, Cambridge University Press, and Oxford University Press for scanning works and making them available in course packs, on campus web pages, and through links from online syllabi.

Flegg uses the term “deep-linking” more than a dozen times. It’s the center of his argument that links from HBP materials to EBSCOhost shouldn’t be open to new business terms. To him

deep-links are as water is to the world’s oceans. They are the very means by which the web is just that, a traversable and navigable web.

It’s a Trojan horse argument, trying to get free access through, inside a deep link.

While deep-linking is certainly vital to the infrastructure of the Internet, it’s only a way of connecting two things. In and of itself, deep-linking doesn’t make any statement about the relationship of the things, grant rights, or convey status to the person using the link. It’s a means, not an end.

Yet there is a tone of profound concern to Flegg’s editorial, which concludes with:

. . . the biggest single danger is the possibility that librarians will acquiesce, pay the fee, and set a precedent to payment for deep-linking, over and above the cost of the subscriptions for which access to the content has already been negotiated and paid.

Apparently, there hasn’t been much cohesion in efforts from the 30 publishers HBP is targeting. Some have paid, others have let it slide.

The issue isn’t a difficult one — educational institutions are commercial entities, and HBP is asserting that commercial use of its materials in course packs and linked from syllabi constitutes commercial use that the EBSCO license doesn’t allow.

Flegg seems to be arguing that because an institution has a site license, it has license to the content for any purpose it fulfills. Unfortunately, it seems HBP has written its licenses more narrowly, and wants to enforce those terms in selected cases where there’s enough money at stake to make it worthwhile.

At least two cases (Texaco, and to a lesser extent, Napster) have shown that courts aren’t very tolerant of arguments that copyright was violated to save money (i.e., avoid paying the copyright holder).

So, while institutions have paid for access to HBP content, apparently they haven’t paid for the rights to distribute the content to students through faculty (in course packs or otherwise).

While a link may be deep, I’ll bet that contract and copyright laws probably extend as far as any link can go.

(Thanks, BK, for the pointer.)

Jill O'Neill Says:

Sep 3, 2009 at 10:31 am

It’s the enforcement in selected cases that I find troubling. Either you think it is wrong of the libraries to do this in any instance or you don’t. Picking and choosing on the basis of whether you think there’s too great a sum of money at stake is problematic. Fish or cut bait.

Dan Lee Says:

Sep 3, 2009 at 4:00 pm

I haven’t read the Flegg piece yet, so the story may be different than I am supposing. But there is nothing free about the copies available in EbscoHost. Libraries pay Ebsco for access for their community to the materials Ebsco has aggregated from others. HBP gets a piece of that as well as the other publishers.

What does HBP think university libraries are paying for? Universities are educational institutions. People teach and take classes. If these materials weren’t used in classes, libraries probably wouldn’t be paying for it. Call it “course packs” or anything you like, it is how scholarly material is used on campus.

From a copyright perspective, the rights of reproduction and distribution are implicated. There isn’t a separate course pack right or right to distribute through faculty.

Michael Clarke Says:

Sep 3, 2009 at 6:23 pm

I am trying to get my head around HBP’s business rules. Let me see if I have this straight:
1. Libraries pay for access to HBP content
2. It is not OK for anyone at the library or university to link to the content they have paid for.

And what does “deep linking” even mean? Linking to an article? Isn’t that also known by the term “linking?” What are people supposed to do: “Hey, check out this great article. Follow this link to the home page and search for it.”

Why wouldn’t HBP simply sell institutional access and price accordingly instead of inflicting bizarre linking policies on their customers? If you have access, you have access. Members of the institution can link to the home page, the table of contents, any given article, or their copy of The HBP Business Rules Deciphered! the latest cryptographic thriller by Dan Brown.

David Smith Says:

Sep 4, 2009 at 8:34 am
Thank God I’m not the only one. My reading was also that HBP were of the opinion that you could find stuff and use it but actually not tell anybody about it (which really is what a link ultimately is). They seem to have decided that reproducing a thing is exactly the same as telling people where a thing is. I was trying to work out how they could let Ebsco put this stuff in their platform given the last bit of their licence “…this content may not be used in electronic reserves…” (Yeah – I know I’m twisting it somewhat )

If I was a library, replacing the direct links with the specific search queries that get you to the same basic place would be exactly what I would do. I’m curious as to how HBP can cut off access to all at an institution given that their own licence specifically allows for discovery based usage, is their plan to punish their paying customers?

Richard Padley Says:

Sep 4, 2009 at 11:02 am
Phew. I thought I was hallucinating when I originally read this, but now it seems the world is that strange after all.

Perhaps this is an attempt to enforce a new type of business model based on redefining the notion of a hyperlink. If you use a DeepLink ™ then you’ll have to pay more?

Perhaps this should be patented … however I’m not sure if BT still have prior art though.