“Real isn’t how you are made. It’s a thing that happens to you. … It doesn’t happen all at once. You become. It takes a long time.”
-Margery Williams Bianco,
The Velveteen Rabbit.401
This previous chapters describe and explain how HathiTrust came to be. This chapter describes and discusses an important phase in HathiTrust becoming the HathiTrust we know today. This is the part of the story where HathiTrust is reified, where it becomes real, where it creates a new reality. The process of reification is essentially a social process and therefore this chapter will focus on the social aspects of HathiTrust’s development and evolution.402
The term reification has a number of other connotations beyond the “social process of becoming real.” Particularly in Marxist and postmodern philosophy, reification is criticized for its tendency to oversimplify and collapse an object into a single phenomenon or form that can then be studied, controlled, etc., instead of acknowledging that the meaning of an object emerges from an unbounded, continuously evolving set of mutually-constitutive processes, experiences, and participations.
My approach to this phase of HathiTrust’s development borrows both Weick’s sense of reification — the social process of becoming real — and the more critically-oriented interpretation of reification just described. The process of HathiTrust becoming the thing we know it to be today did grow out of a collective sensemaking process and this chapter describes and explains key facets of that process. But in also revealing the dark history of HathiTrust’s emergence and evolution, and the murky, still unresolved and contested intersections, this work also pushes back against a static, monolithic understanding of what HathiTrust is.
Picking up where the story left off in the last chapter, the first section of this chapter describes HathiTrust’s early sensemaking and decision-making in forming its governance
401 Bianco (1926). 402 Weick (1995: 23).
structure and describes the evolution of its path, purpose, and organizational trajectory. The second section shifts into a description of how HathiTrust grew and transformed in scope and functionality from a shared digital repository to a more complex, multi-faceted service organization. This chapter concludes with a discussion of a milestone event in the evolution of HathiTrust, its Constitutional Convention, an event which formally marked HathiTrust’s transition into a (semi-)autonomous collective organization.
HathiTrust’s Early Governance
At its inception, the governance structure of HathiTrust consisted of an Executive Director — an Associate University Librarian at Michigan who had served a vital role in Michigan’s digitization efforts and was a lead architect of HathiTrust — and a small executive committee comprised of the University Librarians and Chief Information Officers at the University of Michigan and Indiana University. When HathiTrust was officially launched, representatives from the CIC and the University of California also joined the Executive Committee.
While few things were certain in terms of the broader social implications of mass digitization and the creation of HathiTrust, the Executive Committee had three clear priorities from the outset. First, it wanted to grow the membership of HathiTrust:
“We recognized upfront, even though it was something new to all of us, that it had such potential and was going to get huge. It was clear, almost from the beginning, as everyone started wanting to sign on. We decided, let the membership grow.”
Much as Michigan knew additional partners would be needed for the shared digital repository to be a success, the Executive Committee knew its membership would need to grow for HathiTrust to reach its full potential (whatever that may turn out to be).
Second, the Committee agreed that legal ownership of HathiTrust would remain with the University of Michigan. In other words, while HathiTrust was launched jointly by the CIC and the University of California, it originated as a project of the University of Michigan and thus its status, as a legal entity, remained with Michigan. The possibility was there that, at some point, Michigan might transfer legal ownership to some other institution or otherwise undertake action to make HathiTrust a fully sovereign entity. But there was never much interest or organizational momentum in pursuing that end:
“HathiTrust was initially structured this way as a matter of convenience but, over time, there was never a real push to transition legal ownership of it to some other entity. There was a sense that Michigan was better at handling risk, or that it is better for the other member institutions if Michigan (rather than they) bore the risks.”
While participants noted that the doctrine of sovereign immunity was not discussed when the mass digitization project was first undertaken, it was discussed by the Executive Committee as an additional justification for Michigan retaining legal ownership of HathiTrust. Recall that, as a state institution sovereign immunity was perceived as limiting Michigan’s potential liability for monetary damages from copyright infringement. Private institutions, on the other hand, fall outside the protections of sovereign immunity and thus, as several participants speculated, Michigan’s ownership “gives the members of HathiTrust some comfort.”
In accordance with its legal status, Michigan’s Office of the General Counsel entered into bilateral agreements with each of HathiTrust’s member institutions. These agreements set forth the essential terms of what activities and uses would be permissible with regard to the HathiTrust collection. The vision of HathiTrust evolved rather quickly. At the outset:
“HathiTrust was envisioned in the beginning as a storage locker on the outskirts of town for digital scans. Michigan would own the storage locker, and there would be some basic rules, but what you do in your storage locker is your business.”
This was not, however, the model that was ultimately adopted. The membership’s autonomy with respect to what could be done with HathiTrust’s collection was limited by what Michigan allowed, and what Michigan allowed was primarily a function of its contractual obligations under the UM-Google Cooperative Agreement and risk assessments made by Michigan’s Office of General Counsel. Ultimately, as one of the founders of HathiTrust reflected, “Michigan’s permissions were pretty limited.” Michigan put a ceiling on what uses were possible and individual member institutions could adopt their own policies within that space in accordance with their own objectives and levels of risk tolerance.
The third thing the Executive Committee agreed upon at the outset what that control over HathiTrust should not remain in the hands of its progenitors, now embodied in the Executive Committee, but should instead be passed on to the collective membership. It was understood that HathiTrust should be “a broad collective thing, not “us” telling “you” what to do.” One of the participants in my study explained:
“We knew we had to find a way to shift the control of this organization from the CIC and UC because the academic library community will hate us in the same way they would have hated Michigan and Indiana.”
With respect to Michigan’s role, the move to create an innovative initiative and then essentially give it over to a broader collective was part of its institutional identity:
“Michigan is powerful in its way, but the way we exert our power is less overt than other institutions. Our bias is, we’ll get this ball rolling but we’re not going to stick around to control things.”
One of the challenges that was not discussed by participants but which may be obvious in hindsight is that there is an inherent tension between the Executive Committee’s second and third goals. Michigan simultaneously retaining legal ownership of HathiTrust and giving control of the organization over to the collective may be a source of friction where the risk tolerance of Michigan is incompatible with the organizational goals of HathiTrust. At the time these goals were agreed upon however, in fall, 2008, none of the participants viewed this as a challenge, in part, because Michigan was still very much an innovative deviant with a relatively high and institutionally homogenous risk tolerance.
Setting aside that tension for the time being, the transition of control from the Executive Committee to the broader HathiTrust membership raised a number of pragmatic challenges. In fact, HathiTrust’s inaugural Executive Director reflected that “the biggest change in HathiTrust has been its move to a more formally defined shared governance.” Two concerns, in particular, seemed to dominate the Committee’s sensemaking around this issue.
First, the Executive Committee was concerned that giving control of HathiTrust over to the collective too quickly might prematurely stunt, and possible extinguish, the energy and momentum necessary to establish HathiTrust as a viable, resilient entity. On an instrumental level, the Committee knew it would take time to get HathiTrust off the ground and therefore it wanted to reserve control for a period of time. One of the Committee members explained it this way:
“We will get there, but it can’t happen overnight because we are doing stuff and we need to keep doing stuff. It wasn’t blackmail or holding anything hostage. It was the plan. We don’t have good models for this kind of thing and we needed time to figure stuff out. We need time to make sure this thing is solid and reliable, that the right technology is there, and the right people are working on it between Michigan and Indiana.”
The Executive Committee foresaw a series of tasks ahead that would need to be accomplished in order to get HathiTrust up and running. It needed to figure out how the infrastructure would work. It needed to have a model for attracting and supporting (technically, organizationally, and financially) its growing membership. It needed to determine what kinds of services it might offer, and so forth.
Fresh off the previous decision-making standstills that had bogged down negotiations around the creation of the shared digital repository and HathiTrust, there was a compelling sense that a smaller, less formal, and looser governing structure like the Executive Committee could more easily maneuver the multitude of decisions on the horizon. One of the participants described it as follows:
“It was good that we didn’t really have to have a real formal organization at the beginning. The Executive Director put the issues on the table, provided guidance in dealing with them, and ultimately did most of the work. The Executive Committee was nimble. We almost always agreed on everything and we did a lot very quickly. We didn’t try to dot all of the “i”s and cross all of the “t”s the very first day. If we had, we would have been distracted because, as we discovered, doing that requires a tremendous amount of work.”
Delaying transition to a formal collective governance structure was therefore seen as preserving or buffering a much-needed incubation period during which time HathiTrust could develop, innovate, and collaborate on the products and services it might offer, and build and test a robust supportive infrastructure.
In addition to concerns around stymieing HathiTrust’s growth and potential, a second justification emerged for the small Executive Committee retaining initial control. Specifically, some members of the Committee expressed concern that, if HathiTrust were turned over too quickly to the collective, it might make it vulnerable to usurpation by other institutions. The fear was that other powerful institutions might seize the opportunity to assume a dominant role in HathiTrust’s emerging governance and undermine the potential for a truly collective, democratic governance model. As one of my participants explained:
“The question became one of control. Who is going to get to call the shots? And we knew right from the start that certain institutions, Harvard comes to mind, are going to want to control this from the get-go: ‘Either we control it or we don’t play.’ That’s an extreme version of Harvard’s position, but that was sort of their position. My guess is that if HathiTrust had been started at Harvard, there would not have been discussions about how that institution needed to get out of the way for HathiTrust to be successful. It would have been a Harvard thing from the get-
go: ‘We’re Harvard. Don’t you want to join?’ They wouldn’t try to stop HathiTrust but they might withhold membership as their most extreme action. But we knew we would get enough people to sign on that it would be a going concern and eventually everybody would kind of go along.”
Delaying the transition to collective governance was justified as a way of enabling the Executive Committee to safeguard future collectivism against institutions who may seek early membership as a way of vesting a controlling interest in the organization.
Therefore, in order to grow, cultivate, and protect the membership, and have time to “get the ball rolling” on the multitude of decisions ranging from the day-to-day operations to defining its broader goals, a target date was set, at which time the Executive Committee was pass control of HathiTrust over to the collective. Michigan and Indiana had committed funds to support HathiTrust for a period of three years, and thus three years from the date of its official launch, HathiTrust’s members would convene for a meeting — a Constitutional Convention — whereby the membership would take control of HathiTrust:
“It was a very loose structure at first, but the idea was always there that, in three years, we will have a Constitutional Convention, a date certain by which we would come out with a map to a real governance structure, with a governing board, bylaws, all of those good things. This new governing structure for HathiTrust would be implemented and the existing controlling structure would step back, back away, and say: ‘You guys take it.’ The Convention would gather all of the participants, the supporters, the members of HathiTrust. By then we will have a better idea of cost, what the issues are, and have a better ability to look at the kinds of projects that might form around this kind of a collection.”
The Constitutional Convention was therefore envisioned as an organizational rite of passage marking HathiTrust’s transition into a full-fledged collective. Between this initial sensemaking and decision-making by the Executive Committee and the Constitutional Convention three years later, HathiTrust went through a tremendous period of growth and transition which will now be described.
Emerging Features
In retrospect, providing access to the HathiTrust collection may seem self-evident, but as earlier sections of this thesis explains, the digital corpus largely comprised of the Google Library Project scans was initially conceived of as a preservation repository or a dark archive. Because
there was no purported intention to make the scans accessible, the initial design of the infrastructure that became HathiTrust was not oriented around facilitating access.
However, once the instrumental challenge of securely storing the digital scans was solved, the attention of HathiTrust’s progenitors quickly turned to questions of access. As one participant described:
“In the early days, we were really thinking about preservation. That’s what got this going. Over time, it began to occur to us, the excess power this resource had, and we began to build in access as well.”
Beyond preservation, the key uses that emerged from this perceived “excess power” were access for non-consumptive research such as full-text search and copyright rights determination, improved access for print-disabled patrons, and the beginnings of enhanced access to so-called orphan works. Before describing sensemaking around those emerging uses, this section will address some broader issues, challenges, and tensions raised around preservation and access. RELATIONSHIP AND TENSION BETW EEN PRESERVATION AND ACCESS
In the library and archive community, preservation and access are often difficult to parse. Practitioners view them as mutually constitutive. Access is not particularly meaningful if you cannot rely on an item being preserved and organized in a way that makes it discoverable and useable. In addition, as one of my participants who is a lead archivist explained:
“Preservation without access isn't preservation. The idea that somehow you can have material locked away and maintained in a pristine form with no access just isn't very practical in terms of preservation needs for no other reason than repositories aren't gonna wanna spend a lot of money preserving stuff that no one can take a look at.”
While, as a matter of librarian and archival practice, preservation and access may be functionally entangled, in terms of copyright law, they receive different treatment. As Chapter II described, libraries and archives enjoy specific exemptions around making copies for preservation purposes that are explicitly distinct from specific exemptions around making copies for lending and patron use. Once a library makes a lawful copy for preservation purposes, it is not obvious what, if any, conditions might trigger lawful access to the copy, which is to suggest that while preservation and access may be deeply entangled with respect to social practice, they are held separate with respect to copyright law.
Nevertheless, once the institutions had safely stored the scans in the shared digital repository, new uses and justifications for accessing the scans quickly emerged. The lead architect of a competing digitization effort speculated that the transition from a preservation justification to preservation-plus-access justification may have been more deliberate than emergent:
“I'm not saying that HathiTrust’s progenitors are being disingenuous, but if the talk focuses on preservation it skirts all sorts of issues that are thorny. You can kind of prime a “motherhood and apple pie” perception about what you’re doing and you don't have to deal with the other issues. If you're really about preservation, then the preservationist wants a physical object — these books that were coming out of these libraries were safe and many of them were held in off- site repositories. So the physical materials were quite safe.”
Reading between the lines a bit, the participant here is problematizing preservation as a valid justification for engaging in the digitization of materials for two reasons. The first reason is that the source material, the books, were already well-preserved. They were not damaged, deteriorating, lost or stolen, stored in a format that had become obsolete as §108(c) requires.403 In addition, many preservationists believed that the Google scans were nowhere close to preservation quality. One of the participants in the study whose institution was an early leader in digitization and joined the Google Library Project in 2007 said:
“We never viewed them as being preservation scans. Michigan always used a preservation argument but we never did. I still don't think the quality of the Google scans would meet anyone's standards for preservation access. Certainly not the standards we cite.”
Interviews with participants at Michigan suggest that preservation was a key concern not necessarily for the specific reasons articulated in the Copyright Act but for a more general reason that libraries’ print collections were all dying a slow death from “acid overdose.” Interestingly,
digital preservation, rather than preservation of the print collection was also offered as a