Note: The “viral” nature of the proposed (then quickly hidden again; why not let us comment on a public draft?) OCLC record transfer policy is intended to protect by license what can not be confidently protected by copyright or other intellectual property rights.
It’s debatable whether copyrights exist in cataloging records at any rate. If they do, for records not created or edited by OCLC staff, the copyright would probably belong to the institutions doing the cataloging. (Except in the case of LC, as part of the federal government, it has no US copyrights). So how does OCLC manage to control access to this data and prevent people from sharing it in a way that they believe hurts their business interests? The only way left is licensing, because you can restrict people in a license (a contract) that they agree to however you want (theoretically, however you both agree)—you can exersize control beyond what copyright or other intellectual property rights give you. Same as software licensing.
But the problem is, while institution A might be bound by terms of a license they agree to with OCLC, if entity B gets that data from institution A, entity B is not neccesarily bound by those terms, entity B didn’t agree to any contract.
[Incidentally, for such a major contract here, can it really be enforceably legal when OCLC just says "if you download any records, you automatically agree to it", click-through style, instead of actually having members sign contracts reviewed by their legal departments? I don't know, but they think they can.]
So, the “viral” nature, borrowed from open source projects. The nature of the GNU or other open source licenses is to try to enforce the condition that anyone who uses the licensed property, if they make changes and create a new product, that new product needs to be licensed just as generously. So I heard some people saying “Why are you all worried about the ‘viral’ nature of this license, we got the idea from open source, which you all love.”
Well, there’s a big difference. Open source licenses try to “virally” transfer obligations to provide openness and freedom and prevent subsequent users from providing any additional limits. While OCLC’s proposed license instead tried to virally transfer restrictions, and obligations to OCLC, and contractual restrictions to future parties. Big difference. A tool is just a tool, all in how you use it.
Note for instance that few open source licenses any longer require “non-commercial use only”. They say you can’t stop providing free access to the code, but that’s a very different thing. This is because the “non-commercial use only” restriction that some theoretically open source licenses used to use was deemed too restrictive, not open, and not neccesarily very enforceable either. The OCLC license doesn’t say you can’t stop providing free access to the records–you are under no obligation to provide free access to the records, in fact they’d rather you didn’t, but if you DO, then you are prohibited from sharing them in certain ways, and anyone you share them with is likewise prohibited.
Note also that open source licenses’ legal enforceability is predicated on the assumption that some entity or entities do own the copyright on the source, and they are licensing you to use it (backed up by their copyrights, that’s why you need a license). So it doesn’t matter where you got the source from, the copyright holders have certain rights over it regardless. On the other hand, the vast majority of cataloging copy in OCLC (if not all of it), OCLC certainly does not own copyright to. So their ability to enforce their restrictions is predicated on the idea that by using their service you agree to a license including restrictions. But then they’re trying to propogate these restrictions to those who didn’t even agree to use their service in the first place.
So, will the libraries who (if anyone does at all) actually DO own the copyright to these records start exersizing it? What if when a library contributed original cataloging to OCLC, they included their own 986 field saying “OCLC, this data is licensed under an Open Data Commons style license. By accepting this record into your corpus, you agree to the terms of that license.” Ha, OCLC may have just given us the idea for a great tool to do exactly the opposite of what they’re trying to do.
If only libraries were that interested in open access, and that willing to stand up.
An alternate variation, forget trying to ‘virally’ infect OCLC with a license, instead what if a bunch of libraries that have done original cataloging take all the records they originated and _independently_ give them to a third party (Open Library?). Okay, if you get the records from OCLC (or get them from someone who got them from OCLC), then you are virally infected by OCLC’s license. But does OCLC have any way to stop the originator of a record from independently sharing it with someone other than OCLC? I don’t think so. I don’t think they’re even trying. When you sign up for OCLC membership do you agree to share your records with nobody other than OCLC? I dont’ think so. So a bunch of libraries that do a lot of original cataloging take all their original cataloging, past and future, and give it to Open Library. Now anyone can get it from Open Library without being ‘infected’ by the OCLC license.
Again, if only libraries were that interested in open access, and that willing to take a stand.
Or hey, better idea, why stop at bibs. When we attach our holdings to an OCLC bib, we include a little comment “by accepting this holding attachment, OCLC, you agree that you will make the record of us holding this particular title available for free to anyone who asks for it.” This whole viral click-through contract thing is a great idea OCLC, thanks!