In Conversation with Megan and Tara

By AJ Boston (Associate Professor and Scholarly Communication Librarian, Murray State University)

with Megan Bean (Copyright & Information Policy Specialist, Assistant Professor of Practice, Mississippi State University Libraries)

and Tara Trentalange (Associate Attorney and Records Manager, Trentalange & Kelley, PA)

Last September, I was invited to guest edit a special issue of Against the Grain focused on current legal issues in the publishing industry. At that time, I had just commented on a class action antitrust lawsuit brought against commercial publishers for an Ask the Community roundup in The Scholarly Kitchen. The opinions I expressed there were based on my understanding of scholarly communication and publishing, but without much formal legal training to help back those views.

To help round out my thinking on the many ongoing legal issues in publishing and related industries, I reached out to two people who are a bit newer to librarianship, but have formal legal training, to share in a wide-ranging discussion on some of these topics. In this conversation, you will get to know these two upcoming librarians as we discuss cases such as Uddin v. Elsevier and Thomson Reuters v. Ross Intelligence.

I am immensely grateful to Megan Bean and Tara Trentalange for dedicating time to share their perspectives here. An additional note of thanks to Megan, whose comments on Uddin v. Elsevier were substantial enough to warrant a stand alone piece which you will read in this issue.

Meet the Librarians

AJ Boston (AJ): Thank you for agreeing to be part of this conversation. Before we jump into the deep end, let’s introduce ourselves to each other and the Against the Grain readers. I’ll start. My name is AJ and I’m an associate professor and I’ve been a scholarly communication librarian at Murray State University since 2016. I graduated from library school in 2013 and previously held positions as a public library circulation manager and interim business reference & instruction librarian.

Megan Bean (MB): Hello, and thanks for this opportunity for new arrivals to converse. I’m a Professor of Practice at Mississippi State University (MSU) Libraries, where I’m a Copyright & Information Policy Specialist. I started in August 2023 and I’m the first to fill this position at MSU.

My legal perspective is grounded in my academic studies and work experiences. I have an interdisciplinary undergraduate degree in Law & Society (University of California Santa Barbara), which drives me to investigate how legal incentives work in the real world. No matter my audience, a big dollop of pragmatism shapes my copyright perspective.

My passion for the balancing act of copyright law dates back to my time at Duke Law (JD 2000), where I was influenced by the thoughtful public domain advocacy of Professor David Lange. Alas, the public domain wasn’t hiring when I exited law school, so I followed the legal market to Los Angeles, joining a Big Law Firm litigation practice with a roster of motion picture studio clients. I’ve also long been a photographer, first as a hobbyist and later as a university photographer, shooting work-for-hire. My varied journey allows me to see copyright law from multiple vantage points.

Tara Trentalange (TT): Echoing Megan, thank you for the opportunity to discuss this topic. I’m currently an associate attorney at a personal injury firm that focuses on medical malpractice on behalf of plaintiffs. We are a relatively small law firm, so I also serve as a records and information manager much of the time. I started this position after graduating from the University of Illinois Chicago Law School in 2023.

Before attending law school, I earned my master’s library and information science from the University of Illinois at Urbana Champaign in 2019. While I have no formal employment experience in libraries, I’ve worked in records management in a variety of settings from university archives to the Bureau of Land Management.

Relationship to Law, Libraries, and ScholComm

AJ: Thanks for that! Next, I’m curious to learn about your relationship with law, libraries, and your relationship with “scholarly communication.”

TT: I first discovered my interest in libraries while earning my bachelor’s degree in history at Auburn University. The history curriculum provided me many opportunities to spend time researching in the library and in the archives. I took courses on archival theory and public history, and the combination of these courses and experiences led me to the conclusion that I wanted to attend graduate school for library and information science.

While applying to library programs, I interned with the Bureau of Land Management where I created and began implementing a records management program for their archaeology department. This experience strengthened not only my interest in libraries and information science in general but also my dedication to working in this field. I toyed with the idea of becoming a law librarian, which was something I had only minimal exposure to at the time, so I applied to several places that had both a library science program and a law school. Unfortunately, I was not accepted to the law schools I applied to, but I did manage to get into the iSchool at the University of Illinois in Urbana Champaign. I worked as a graduate research assistant in the University Archives for some time until the project I was working on was completed.

I graduated with my master’s degree shortly before the COVID-19 pandemic began in 2020 which made it difficult to gain employment in my chosen field. As such, I applied to law schools in Chicago, where I was living at the time, and was accepted to the University of Illinois at Chicago. This is where I would likely pinpoint the beginning of my relationship with the law. My law school experience looked much different than a traditional one, as for two of my three years I attended classes remotely.

I first interacted with scholarly communications during undergrad, long before I would know that was what it was called. The scholarly communications process facilitated much of the research I engaged in during this time. Several courses had us engage in informal peer review, and we held a mock scholarly conference where we presented our research projects. In library school, I learned more about it as a subfield of information science and that the concepts I had been interacting with were within the realm of “scholarly communications.” In law school, I continued interacting with this field through the lens of copyright and intellectual property and the more specific subcategory of law reviews. I have been particularly interested in open access and institutional repositories since library school, but now I have the added legal perspective. It’s been really interesting, and also somewhat distressing, to see the interplay between rights of access and rights of authors and publishers. Open access is really important for many reasons but, personally, since I now work for a small firm, it’s really important for us to be able to do research while also keeping our costs down.

MB: It’s hard to believe that although I’d been in the MSU community for around two decades before I took this job, I’d never heard of “scholarly communication.” It’s a reminder to us all that the term has little traction outside of academic libraries. I’ve been on a steep learning curve since my arrival to Schol Comm, catching up on the quirks of copyright law in academia and becoming acquainted with this rather complicated scholarly publishing ecosystem. While it would take a lifetime to understand the details, I have a grasp of the fundamentals of the Schol Comm Dilemma from the angle of copyright law and can see the unsustainability and precariousness of the digital academic publishing world.

My legal background may make me braver (or more foolhardy) about diving headfirst into a complex and high stakes arena like Schol Comm. My advantage as a newcomer here is that I don’t yet have my own ego invested in any particular solutions. Moreover, I’m based at a library with longstanding budget constraints where we must be especially creative in our problem-solving. While wealthier academic libraries have been able to use their resources to be activist “good guys” in the open access arena, my own library has had to prioritize meeting our campus’s essential needs. I’m grateful for the institutions that have been able to support more ambitious open access initiatives for the benefit of the world. I’m working to provide what I can to our campus community: education and information.

As the only person in a position focused on the subject of copyright law on my campus — or perhaps in the whole state of Mississippi — I have the potential to have a fair bit of influence. With that in mind, I’m treading carefully as I monitor Schol Comm and the volatility of today’s copyright terrain.

Cases of Note

AJ: As I mentioned to both of you separately, this issue of Against the Grain is focused on lawsuits/legal action in the scholarly publishing and information industries. There are plenty of examples to pick from. Which of these have caught your attention?

Case of Note: Uddin v. Elsevier

MB: I’ve been fascinated by the antitrust class action lawsuit Lucina Uddin v. Elsevier, B.V., et al., No. 1:24-cv-06409 (E.D.N.Y. Sept. 12, 2024). The case’s implications could be huge for Schol Comm, yet I’ve seen little discussion of the fundamental issues that raised red flags for me. Whatever the outcome of the case, the concerns brought up by Uddin could spur many a lively conversation.

AJ : Megan, there has been plenty of conversation about Uddin v. Elsevier from folks who are knowledgeable in scholarly communication but are perhaps less versed in actual law (telling on myself here). It sounds like you have a bit of the reverse here: formal legal training and experience and self-proclaimed “newcomer” status in scholarly communication. Can you share a bit more about the fundamental legal issues that us scholcommers may be overlooking?

MB: Thanks AJ. This seems like a fine time to mention that, in addition to my being a Schol Comm newbie, I claim no expertise in antitrust or class action law, so take my broad sweeping observations with a healthy grain of salt.

What fascinates me about Uddin is not parsing through the legal nitty gritty but marveling about the forces that brought us to this particular class action case at this moment. And also bracing ourselves for its potential impact.

I can see how antitrust law applied here would — by design — make scholarly publishing more beholden to market forces. That impetus becomes even more remarkable when coupled with the observation that universities and funding agencies have no say in the matter. Could this be the perfect storm?

AJ: Megan, your original response had so much depth, we spun it into its own standalone piece. I appreciate the unique insights you raise there! We talked a bit about this back in the winter, but would you care to share a bit about your legal experience that pertains to Uddin?

MB : What an opportunity to share my meandering observations! And sure, I’m also happy to relay a story from my past as a litigator. What follows falls more in the category of cocktail party banter but, way back, when I was a Big Firm junior associate, I was part of a team involved in one of the most important book industry lawsuits of the time, and it was on antitrust grounds: American Booksellers Ass’n v. Barnes & Noble, Inc., 135 F. Supp. 2d 1031 (N.D. Cal. 2001). The American Book Association & 23 independent bookstores had sued Barnes & Noble and Borders, alleging that the large booksellers were unfairly using their market dominance to receive discounts & preferential treatment from publishers.

The case ended with a decisive summary judgment victory on behalf of the defendants, and the remaining bits of the case settled soon after. I recall rather nice bottles of champagne being handed out to all the victorious attorneys, with gratitude from Len Riggio (B&N’s leader and largest shareholder until the sale of the company in 2019).

My experience in this one court battle punctuates a point: if you’re going to bet on a winning side, remember that owing to their deep resources, the odds are nearly always in the favor of the mega firms and the clients who can afford them.

Interestingly, parallel to the factors leading to Uddin, the ABA v. B&N case arose during a moment of particular stress in the publishing & bookselling marketplace. Independent booksellers had been under tremendous market pressure from the dominant big box booksellers. Curiously, even at the time, the biggest threat to all wasn’t a named defendant: Amazon was circling all the parties to this case, challenging the very future of brick and mortar bookstores. Ten years later, Borders would file for bankruptcy. Who would have guessed then that Barnes & Noble and so many key independent booksellers would prove nimble enough to withstand these last decades of market turbulence? What a reminder of the ability of various players to adapt to change: it’s a fool’s errand to prognosticate during a time of great disruption.

During the ABA v. B&N litigation, I was tasked with getting to know the independent bookseller plaintiffs and I found my loyalty to our client sorely tested by the journey. In the years since, I’ve done penance by making a point of supporting independent booksellers whenever I can. I’m delighted that (a) so many independent booksellers have proved resilient to changing times and (b) that I now find myself in a position where my moral compass more easily aligns with the tasks of my job. While the values supported by academic libraries feel like they’re under fire all the time, at least they’re causes I feel extra motivated to fight for.

Cases of Note: Thomson Reuters v. Ross Intelligence

TT: There are a couple of cases I’ve been keeping an eye on, and both of them broadly implicate fair use among other things. The first is Hachette v. Internet Archive, which has been discussed at length for the past couple of years. The second, which I have seen little public discussion regarding, is Thomson Reuters v. Ross Intelligence. This case is especially interesting to me because it also involves the training of Artificial Intelligence (AI) large language models on copyrighted materials. In early February, a federal district court in Delaware ruled that the AI usage of Reuters’s copyrighted materials — specifically, Westlaw headnotes — was not fair use.

AJ: Tara, do you have a general philosophy about fair use, copyright, and large language models? Can you briefly summarize (for a novice such as myself) the court ruling in the case of Thomson Reuters v. Ross Intelligence, and whether it seemed like the right call, in your opinion?

TT: Similar to Megan, I don’t claim to be an expert in the specific subject matter of this case. I took some classes on copyright, trademarks, and patent law in law school. I dabbled a bit in copyright in library school as well. So my opinion on these topics is influenced by both of these schools of thought as well as keeping up with a few current cases.

I generally support a broad application of the doctrine of fair use because it promotes and facilitates research, the spread of knowledge, and freedom of expression. Strict enforcement of copyright without fair use would, for example, hinder the ability of educators to use copyrighted materials for learning purposes or prevent libraries from being able to digitize their copyrighted materials because they would need to obtain permission from the copyright holder. This would place an enormous administrative and financial burden on anyone attempting to access and teach about anything copyrighted. It would also thwart the purpose of copyright protections by stifling the flow of knowledge.

As for copyright, I understand the purpose for which it was originally created, but I think what we’re seeing currently runs counter to that stated purpose. I tend to agree with the view that copyright has evolved in the context of capitalism to no longer benefit the creators themselves but the corporations that control the copyright. And since these corporations have the resources, they’ve amassed huge amounts of copyrighted material. We’ve seen this with academic publishers like Megan discussed, but it’s also an issue in the music industry and in entertainment.

It’s complex because, while I don’t support strict enforcement of copyright protections and am generally in favor of fair use, I’m also wary of large language models like the one at issue in Ross Intelligence and the scraping of copyrighted material in order to train these models. In that case, Ross Intelligence was building a legal research tool to compete with Thomson Reuters’s Westlaw. In order to train this model to produce reliable results to natural language queries, Ross sought to license Westlaw’s Key Number System and headnotes. Thomson Reuters declined. Ross then sought to train their model on memos generated by a third party company, LegalEase Solutions. However, LegalEase was drafting these memos using Westlaw’s data, including the Key Number System and headnotes. This led Thomson Reuters to sue Ross Intelligence for copyright infringement.

In federal court, Thomson Reuters argued that the use of its Key Number System and the case headnotes in training Ross Intelligence’s legal research tool infringed on their copyrights. Ross Intelligence argued that its use of this material was permitted under the fair use doctrine and that the headnotes were not sufficiently original enough to qualify for copyright protections. Both parties moved for summary judgment on the issues.

The most recent development in this case was the court granting partial summary judgment in favor of Thomson Reuters on the issues of infringement and the failure of Ross Intelligence’s defenses, including the affirmative defense of fair use. In a twenty-four page memorandum opinion, the court held that Ross infringed at least 2,243 headnotes and that their various defenses did not hold water.

In order to prove infringement of copyright, the plaintiff must show that it owned valid copyright in the first place. The plaintiff must also show that the alleged infringer (Ross) copied protectable elements of the copyrighted work. The second factor of this analysis has two parts: that Ross actually copied the protected work and that Ross’s copy was substantially similar to the copyrighted work. Actual copying means that the alleged infringer did, in fact, use the copyrighted work in creating his or her own. This can be proven directly with evidence that the defendant copied the work, or indirectly by showing the defendant had access to the work and produced something substantially similar.

Copyright registrations made before or within five years after the first publication of a work are prima facie evidence of the validity of copyright. This can be rebutted by showing that the works are not original because the Constitution limits copyright protections to original works. But the threshold for “originality” is remarkably low and requires only a minimal degree of creativity. The court explained in detail that both the headnotes and the Key Number System meet this creativity threshold. The headnotes are original on an individual basis, because they “introduce creativity by distilling, synthesizing, or explaining” part of a judicial opinion. The headnotes are also original as a compilation because the compiler makes choices of selection and arrangement. Thus, the court held that Thomson Reuters has valid copyright in the works at issue.

The court also found that Ross Intelligence had actually copied at least 2,243 headnotes and that there was a substantial similarity between the headnotes and the Bulk Memos produced by LegalEase. The defense of innocent infringement was rejected because it is inapplicable where the infringed work bears a copyright notice, as Westlaw’s headnotes do. Copyright misuse was also rejected as a defense because Ross failed to make a showing that Thomson Reuters had misused its copyrights to stifle competition. Ross had previously attempted to bring an antitrust counterclaim against Reuters on a similar theory of stifling competition, but the court rejected this argument as well. The remaining defenses of merger and scènes à faire were also rejected as inapplicable to the facts of the case.

As for the fair use defense, the court considered four factors: the use’s purpose and character, the copyrighted work’s nature, how much of the work was used and how substantial it was in relation to the whole of the work, and how the use affected the potential market or the value of the copyrighted work. Ultimately, the court ruled in favor of Thomson Reuters and rejected Ross’s fair use argument.

The court declined to grant summary judgment on the issue of the Key Number System, finding that there were still factual disputes. Summary judgment is proper where there is no issue as to any material fact and the party moving for summary judgment is entitled to a judgment as a matter of law. So the issue involving the Key Number System would need to be brought in front of a jury.

As for my opinion on whether this was the right call, my answer would have to be that it depends. The judge who authored this opinion, Judge Bibas, is very convincing. But as with many issues in law, I can see the argument for both sides here.

AJ: Tara, with the court having rejected Ross’ fair use argument, what downstream effects (or lessons) do you think that libraries, vendors, publishers should now be considering?

TT: Taking into account that the set of facts in the above case is really quite different from the lending model of libraries and other established cases of fair use, the court’s rejection of that argument here could lead to stricter enforcement of copyright protections to the detriment of fair use. For libraries, fair use is extremely important for lending materials to their patrons.

On the other hand, or perhaps on a spectrum of fair use and copyright, publishers (who are often the holders of copyrights) financially benefit from enforcement of copyright protections. This case could represent an opening for publishers to seek enforcement of those protections by limiting fair use by libraries and other institutions. As for vendors, I see them as sort of in the middle of the spectrum but closer to a stricter enforcement of copyright because they are licensed to distribute copyrighted materials.

More than anything, I think the overall lesson here is that this issue is not going away, and it’s not something that’s cut and dry. I think we’re going to see more lawsuits by copyright holders challenging fair use in the immediate future, and they’re going to have monumental effects on libraries.

Based on this case and in combination with Megan’s assessments and her litigation experience mentioned above, another lesson to be learned is that antitrust law doesn’t seem to favor the little guy. It’s worth mentioning that Ross Intelligence was a startup company with very little resources, and Thomson Reuters is a behemoth of a company with a market cap of $82.21 Billion. In Ross, one of the very first arguments they made was that Thomson Reuters’s Westlaw violated antitrust law. It was dismissed almost immediately. Ross Intelligence shut down in 2021, citing this very lawsuit and the financial burden of litigating it as the reason.

Topics in this Issue

AJ: In the issue of Against the Grain, we expect to see pieces covering a variety of topics. Are there any burning questions you hope to see answered in any of these?

TT: I’d like to know more about what the future of the Internet Archive is going to look like in the aftermath of Hachette , because I’m a staunch supporter of the Internet Archive. Additionally, I’m a resident of Florida, which has the highest or one of the highest amounts of books that have been banned by the Florida Department of Education, so I’d definitely like to know more about any legal challenges to book bans. It’s baffling to even say that education officials have banned books.

MB: This will be an interesting issue, indeed. I’m most interested in the intersection of data cartels and scholarly communication and am eager to read all I can on the subject. Schol Comm has been wrestling with the copyright ownership and control issues for years, but data cartel issues now loom as the most existential threat. It seems that everyone’s aggressive pursuit of Open Access at all costs has aligned with other market forces to create even bigger problems. It pains me to see the data mongers and AI proponents working together to kill the beating heart of copyright law at the expense of creators. I can see how all the data recorded from scholars’ interacting with journal articles could lead to some dystopian observation and control situations for academics and universities in general. Data has value, and anyone who can pay for it can use it for their own ends. These are terrifying times and we all should be paying close attention.

AJ: These are great questions to be thinking about and I hope some of the pieces in the rest of this issue will help illuminate. Thank you both for taking part in this conversation!