Saturday, May 30, 2009

Privatizing the Archive

Speaking of attempts to privatize the public record, I heard about a fascinating controversy from my UCI colleague, historian Jennifer Luff, who had a concerning exchange with the National Archives about their online collection of digitized records and their use of a third party commercial provider, Footnote. Luff was at the NYU at the time, and so she no longer has the e-mails that she exchanged with NARA representatives, but some of her concerns were documented in a comment on this entry on the Footnote blog.

Searching functions are the least of Footnote’s problems. The site’s structure makes it very difficult to read and download sizeable files. Keyword searching in the voluminous BI files yields hits on single pages, yet for larger files, the filmstrip function on the viewer doesn’t display the file pages in order. Thus you can’t just click on the previous or following document pages and download chunks of files. Moreover in the browse function, BI files are not listed in numerical order. With hundreds of thousands of files, users can’t just page through and find files by number. I strongly urge you to improve the functions of Footnote. Otherwise NARA should not contract with this unknown provider with inadequate technology.

Not allowing easy downloads of files the size that historians typically work with seems to force many scholars into the company's pay-to-play structure to access documents from the National Archive on Footnote. Although Footnote promotes its business model with free trials and promotional giveaways, the profit model, which may not be appropriate for public archives, is central.

Although the NARA/Footnote partnership was lauded with a press release and the agreement is available on the web supposedly to promote transparency, Luff hasn't been the only one to raise questions. Dan Cohen of the Center for History and New Media points out some of these issues in a blog posting called "A Closer Look the National Archives-Footnote Agreement" Cohen is no stranger to the challenges of large-scale digitization efforts and the problems of copyright overreaching in the historical community, so his analysis of the fine print deserves attention.

When I first went to the Footnote site, I was unpleasantly surprised that it required registration even to look at “milestone” documents like Lincoln’s draft of the Gettysburg Address. (Unfortunately, Footnote doesn’t have a list of all of its free content yet, so it’s hard to find such documents.) Justin and Peter responded that when they launched the site there was an error in the document viewer, so they had to add authentication to all document views. A fix was rolled out on January 23, and it’s now possible to view these important documents without registering.

You do need to register, however, to print or download any document, whether it’s considered “free” or “premium.” Why? Justin and Peter candidly noted that although they have done digitization projects before, the National Archives project, which contains millions of critical—and public domain—documents, is a first for them. They are understandably worried about the “leakage” of documents from their site, and want to take it one step at a time. So to start they will track all downloads to see how much escapes, especially in large batches. I noted that downloading and even reusing these documents (even en masse) very well might be legal, despite Footnote’s terms of service, because the scans are “slavish” copies of the originals, which are not protected by copyright. Footnote lawyers are looking at copyright law and what other primary-source sites are doing, and they say that they view these initial months as a learning experience to see if the terms of service can or should change. Footnote’s stance on copyright law and terms of usage will clearly be worth watching.

Speaking of terms of usage, I voiced a similar concern about Footnote’s policies toward minors. As you’ll recall, Footnote’s terms of service say the site is intended for those 18 and older, thus seeming to turn away the many K-12 classes that could take advantage of it. Justin and Peter were most passionate on this point. They told me that Footnote would like to give free access to the site for the K-12 market, but pointed to the restrictiveness of U.S. child protection laws. Because the Footnote site allows users to upload documents as well as view them, they worry about what youngsters might find there in addition to the NARA docs. These laws also mandate the “over 18″ clause because the site captures personal information. It seems to me that there’s probably a technical solution that could be found here, similar to the one uses to provide K-12 teaching materials without capturing information from the students.

Footnote pays some lip service to Cohen's concerns in "Finding the Right Balance," but fundamental changes in the user agreement are clearly not a priority for the company.

Footnote also has partnered with CNN and the Washington Times Footnote hosts the Interactive Vietnam Veterans Memorial, although those who contribute their photos and memorabilia from deceased loved ones who died in the sixties and seventies, may want to read the company's terms and conditions carefully.

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