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.)