Declaration of Sylvia Hall-Ellis, Ph.D.
`Petition for Inter Partes Review of
`U.S. Patent No. 8,209,634
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`_____________________________
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`____________________________
`
`SNAP INC.,
`
`Petitioner
`
`v.
`
`BLACKBERRY LIMITED
`Patent Owner
`
`___________________________
`
`U.S. Patent No. 8,209,634 B2
`Issue Date: June 26, 2012
`
`Title: PREVIEWING A NEW EVENT ON A SMALL SCREEN DEVICE
`
`DECLARATION OF SYLVIA HALL-ELLIS, PH.D.
`
`
`
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`Declaration of Sylvia Hall-Ellis, Ph.D.
`Petition for Inter Partes Review of
`U.S. Patent No. 8,209,634
`
`
`
`
`
`
`
`Table of Contents
`
`Page
`
`
`I.
`
`INTRODUCTION ................................................................................... 3
`
`II. QUALIFICATIONS ................................................................................ 3
`
`III. PRELIMINARIES ................................................................................... 5
`
`A.
`
`B.
`
`C.
`
`Scope of Declaration and Legal Standards ................................... 5
`
`Persons of Ordinary Skill in the Art .............................................. 6
`
`Use of Authoritative Databases ..................................................... 7
`
`1.
`
`Indexing .............................................................................. 7
`
`D.
`
`Summary of Opinions ................................................................... 8
`
`IV. LIBRARY CATALOGING PRACTICES .............................................. 8
`
`A. MARC Records and OCLC ........................................................... 8
`
`1.
`
`Fields 008, 005, and 955 in MARC Records as Indicators
`of Public Accessibility ...................................................... 17
`
`B.
`
`Journals ........................................................................................ 21
`
`V.
`
`PUBLICATIONS IN THIS PROCEEDING ......................................... 22
`
`A. Dvorak [Exhibit B] ...................................................................... 22
`
`B.
`
`C.
`
`Strom [Exhibit E] ........................................................................ 25
`
`Schwartz [Exhibit H] ................................................................... 29
`
`D. McPherson [Exhibit K] ............................................................... 31
`
`E.
`
`Crumlish [Exhibit N] ................................................................... 33
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`VI. CONCLUSION ..................................................................................... 35
`
`
`
`
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`i
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`I, Sylvia D. Hall-Ellis, Ph.D., declare as follows:
`
`I.
`
`INTRODUCTION
`
`1. My name is Sylvia D. Hall-Ellis. I have been retained as an expert
`
`by SNAP INC., who I am informed is the Petitioner to this IPR proceeding.
`
`2.
`
`I have written this report at the request of the Petitioners to provide
`
`my expert opinion regarding the public availability of certain books and journal
`
`articles, identified below. My report sets forth my opinions in detail and provides
`
`the basis for my opinions regarding the public availability of these books and
`
`journal articles.
`
`3.
`
`I reserve the right to supplement or amend my opinions, and bases
`
`for them, in response to any additional evidence, testimony, discovery, argument,
`
`and/or other additional information that may be provided to me after the date of
`
`this report.
`
`4.
`
`I am being compensated for my time spent working on this matter at
`
`my normal consulting rate of $300 per hour, plus reimbursement for any
`
`additional reasonable expenses. My compensation is not in any way tied to the
`
`content of this report, the substance of my opinions, or the outcome of this
`
`litigation. I have no other interests in this proceeding or with any of the parties.
`
`5.
`
`All of the materials that I considered and relied upon are discussed
`
`explicitly in this declaration.
`
`II. QUALIFICATIONS
`
`6.
`
`I am currently an Adjunct Professor in the School of Information at
`3
`
`
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`San José State University in San José, California. I obtained a Masters of Library
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`Science from the University of North Texas in 1972 and a Ph.D. in Library
`
`Science from the University of Pittsburgh in 1985. Over the last forty-five years,
`
`I have held various positions in the field of library and information resources. I
`
`was first employed as a librarian in 1966, and have been involved in the field of
`
`library sciences since, holding numerous positions.
`
`7.
`
`I am a member of the American Library Association (ALA) and its
`
`Association for Library Collections & Technical Services (ALCTS) Division,
`
`and I served on the Committee on Cataloging: Resource and Description (which
`
`wrote the new cataloging rules) and as the chair of the Committee for Education
`
`and Training of Catalogers and the Competencies and Education for a Career in
`
`Cataloging Interest Group. I also served as the Chair of the ALCTS Division’s
`
`Task Force on Competencies and Education for a Career in Cataloging.
`
`Additionally, I have served as the Chair for the ALA Office of Diversity’s
`
`Committee on Diversity. Currently I serve as a member of the Editorial Board
`
`for the ALCTS premier cataloging journal, Library Resources and Technical
`
`Services.
`
`8.
`
`I have also given over one hundred presentations in the field,
`
`including several on
`
`library cataloging systems and Machine-Readable
`
`Cataloging (“MARC”) standards. My current research interests include library
`
`cataloging systems, metadata, and organization of electronic resources.
`
`
`
`4
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`9. My full curriculum vitae is attached hereto as Exhibit A.
`
`
`III. PRELIMINARIES
`
`A.
`
`Scope of Declaration and Legal Standards
`
`10.
`
`I am not an attorney and will not offer opinions on the law. I am,
`
`however, rendering my expert opinion on the authenticity of the documents
`
`referenced herein and on when and how each of these documents was
`
`disseminated or otherwise made available to the extent that persons interested
`
`and ordinarily skilled in the subject matter or art, exercising reasonable
`
`diligence, could have located the documents before the dates discussed below
`
`with respect to the specific documents.
`
`11.
`
`I am informed by counsel that a printed publication qualifies as
`
`publicly accessible as of the date it was disseminated or otherwise made
`
`available such that a person interested in and ordinarily skilled in the relevant
`
`subject matter could locate it through the exercise of ordinary diligence.
`
`12. While I understand that the determination of public accessibility
`
`under the foregoing standard rests on a case-by-case analysis of the facts
`
`particular to an individual publication, I also understand that a printed
`
`publication is rendered “publicly accessible” if it is cataloged and indexed by a
`
`library such that a person interested in the relevant subject matter could locate it
`
`(i.e., I understand that cataloging and indexing by a library is sufficient, though
`
`there are other ways that a printed publication may qualify as publicly
`
`
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`5
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`accessible). One manner of sufficient indexing is indexing according to subject
`
`matter category. I understand that the cataloging and indexing by a single library
`
`of a single instance of a particular printed publication is sufficient, even if the
`
`single library is in a foreign country. I understand that, even if access to a library
`
`is restricted, a printed publication that has been cataloged and indexed therein is
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`publicly accessible so long as a presumption is raised that the portion of the
`
`public concerned with the relevant subject matter would know of the printed
`
`publication. I also understand that the cataloging and indexing of information
`
`that would guide a person interested in the relevant subject matter to the printed
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`publication, such as the cataloging and indexing of an abstract for the printed
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`publication, is sufficient to render the printed publication publicly accessible.
`
`13.
`
`I understand that routine business practices, such as general library
`
`cataloging and indexing practices, can be used to establish an approximate date
`
`on which a printed publication became publicly accessible.
`
`B.
`
`14.
`
`Persons of Ordinary Skill in the Art
`
`I am told by counsel that the subject matter of this proceeding
`
`generally relates to electronic messaging and wireless communication devices.
`
`15.
`
`I have been informed by counsel that a “person of ordinary skill in
`
`the art at the time of the inventions” is a hypothetical person who is presumed to
`
`be familiar with the relevant field and its literature at the time of the inventions.
`
`This hypothetical person is also a person of ordinary creativity, capable of
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`
`
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`understanding the scientific principles applicable to the pertinent field.
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`16.
`
`I am told by counsel that a person of ordinary skill in this subject
`
`matter or art would typically be someone who possessed at least a bachelor’s
`
`degree in software engineering, computer science, computer engineering, or
`
`electrical engineering with at least two years of experience in software
`
`application development, including development of graphical applications on
`
`wireless devices, such as development of associated user interface features and
`
`functionality (or equivalent degree or experience). I have been further informed
`
`by counsel that a person of ordinary skill in the art would have been familiar
`
`with and able to understand the information known in the art relating to these
`
`fields, including the publications discussed in this declaration.
`
`C. Use of Authoritative Databases
`
`17.
`
`In preparing this report, I used authoritative databases, such as the
`
`OCLC bibliographic database and the Library of Congress Online Catalog, to
`
`confirm citation details of the various publications discussed.
`
`1.
`
`Indexing
`
`18. A researcher may discover material relevant to his or her topic in a
`
`variety of ways. One common means of discovery is to search for relevant
`
`information in an index of periodical and other publications. Having found
`
`relevant material, the researcher will then normally obtain it online, look for it in
`
`libraries, or purchase it from the publisher, a bookstore, a document delivery
`
`
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`service, or other provider. Sometimes, the date of a document’s public
`
`accessibility will involve both indexing and library date information.
`
`19.
`
`Indexing services use a wide variety of controlled vocabularies to
`
`provide subject access and other means of discovering the content of documents.
`
`The formats in which these access terms are presented vary from service to
`
`service.
`
`20. Online
`
`indexing
`
`services commonly provide bibliographic
`
`information, abstracts, and full-text copies of the indexed publications, along
`
`with a list of the documents cited in the indexed publication. These services also
`
`often provide lists of publications that cite a given document. A citation of a
`
`document is evidence that the document was publicly available and in use by
`
`researchers no later than the publication date of the citing document.
`
`D.
`
`21.
`
`Summary of Opinions
`
`I am informed by counsel that the priority date for the patent at
`
`issue is December 1, 2003. As I will explain below, it is my opinion that the
`
`printed publications discussed in my Declaration were publicly accessible before
`
`the December 1, 2003 priority date.
`
`IV. LIBRARY CATALOGING PRACTICES
`
`A. MARC Records and OCLC
`
`22.
`
`I am fully familiar with the library cataloging standard known as the
`
`MARC standard, which is an industry-wide standard method of storing and
`
`organizing library catalog information. MARC was first developed in the 1960’s
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`
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`by the Library of Congress. A MARC-compatible library is one that has a
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`catalog consisting of individual MARC records for works made available at that
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`library.
`
`23.
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`Since at least the early 1970s and continuing to the present day,
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`MARC has been the primary communications protocol for the transfer and
`
`storage of bibliographic metadata in libraries.1 As explained by the Library of
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`Congress:
`
`You could devise your own method of organizing the bibliographic
`
`information, but you would be isolating your library, limiting its
`
`options, and creating much more work for yourself. Using the
`
`MARC standard prevents duplication of work and allows libraries to
`
`better share bibliographic resources. Choosing to use MARC
`
`enables libraries to acquire cataloging data that is predictable and
`
`reliable. If a library were to develop a “home-grown” system that
`
`did not use MARC records, it would not be taking advantage of an
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`industry-wide standard whose primary purpose
`
`is
`
`to foster
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`communication of information.
`
`Using the MARC standard also enables libraries to make use
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`of commercially available library automation systems to manage
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`library operations. Many systems are available for libraries of all
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`sizes and are designed to work with the MARC format. Systems are
`
`maintained and improved by the vendor so that libraries can benefit
`
`
`1 A complete history of the development of MARC can be found in MARC: Its
`History and Implications by Henrietta D. Avram (Washington, DC: Library of
`Congress,
`1975)
`and
`available
`online
`from
`the Hathi Trust
`(https://babel.hathitrust.org/cgi/pt?id=mdp.39015034388556;view=1up;seq=1;
`last visited March 18, 2019).
`
`
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`from the latest advances in computer technology. The MARC
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`standard also allows libraries to replace one system with another
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`with the assurance that their data will still be compatible.
`
`Why
`
`Is a MARC Record Necessary? LIBRARY OF CONGRESS,
`
`http://www.loc.gov/marc/umb/um01to06.html#part2 (last visited March 18,
`
`2019).
`
`24. Thus, almost every major library in the world is MARC-compatible.
`
`See, e.g., MARC Frequently Asked Questions (FAQ), LIBRARY OF CONGRESS,
`
`https://www.loc.gov/marc/faq.html (last visited March 18, 2019) (“MARC is the
`
`acronym for MAchine-Readable Cataloging. It defines a data format that
`
`emerged from a Library of Congress-led initiative that began nearly fifty years
`
`ago. It provides the mechanism by which computers exchange, use, and interpret
`
`bibliographic information, and its data elements make up the foundation of most
`
`library catalogs used today.”). MARC is the ANSI/NISO Z39.2-1994 standard
`
`(reaffirmed in 2016) for Information Interchange Format. The full text of the
`
`standard
`
`is
`
`available
`
`from
`
`the
`
`Library
`
`of
`
`Congress
`
`at
`
`http://www.loc.gov/marc/bibliographic/ (last visited March 18, 2019).
`
`25. A MARC record comprises several fields, each of which contains
`
`specific data about the work. Each field is identified by a standardized, unique,
`
`three-digit code corresponding to the type of data that follow. See, e.g.,
`
`http://www.loc.gov/marc/umb/um07to10.html (last visited March 18, 2019);
`
`http://www.loc.gov/marc/bibliographic/ (last visited March 18, 2019). For
`
`
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`example, a work’s title is recorded in field 245, the primary author of the work is
`
`recorded in field 100, a work’s International Standard Book Number (“ISBN”) is
`
`recorded in field 020, and the publication date is recorded in field 260 under the
`
`subfield “c.” Id. 2 If a work is a periodical, then its publication frequency is
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`recorded in field 310, and the publication dates (e.g., the first and last
`
`publication) are recorded in field 362, which is also referred to as the
`
`enumeration/chronology field.
`
`See http://www.loc.gov/marc/bibliographic/bd3xx.html (last visited March 18,
`
`2019).3
`
`26. The library that initially created the MARC record is reflected in
`
`field 040 in subfield “a” with that library’s unique library code. See, e.g.,
`
`http://www.loc.gov/marc/umb/um07to10.html (last visited March 18, 2019);
`
`http://www.loc.gov/marc/bibliographic/ (last visited March 18, 2019). Once a
`
`
`2 In some MARC records, field 264 is used rather than field 260 to record
`publication information. See http://www.loc.gov/marc/bibliographic/bd264.html
`(last visited March 18, 2019) (“Information in field 264 is similar to information
`in field 260 (Publication, Distribution, etc. (Imprint)). Field 264 is useful for
`cases where the content standard or institutional policies make a distinction
`between functions”).
`3 Upwards of two-thirds to three-quarters of book sales to libraries come from a
`jobber or wholesaler for online and print resources. These resellers make it their
`business to provide books to their customers as fast as possible, often providing
`turnaround times of only a single day after publication. Libraries purchase a
`significant portion of the balance of their books directly from publishers
`themselves, which provide delivery on a similarly expedited schedule. In general,
`libraries make these purchases throughout the year as the books are published and
`shelve the books as soon thereafter as possible in order to make the books
`available to their patrons. Thus, books are generally available at libraries across
`the country within just a few days of publication.
`11
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`MARC record for a particular work is originally created by one library, other
`
`libraries can use that original MARC record to then create their own MARC
`
`records for their own copies of the same work. These other libraries may modify
`
`or add to the original MARC record as necessary to reflect data specific to their
`
`own copies of the work. However, the library that created the original MARC
`
`record would still be reflected in these modified MARC records (corresponding
`
`to other copies of the same work at other libraries) in field 040, subfield “a”. The
`
`modifying library (or libraries) is reflected in field 040, subfield “d”. See
`
`http://www.loc.gov/marc/bibliographic/bd040.html
`
`(last visited March 18,
`
`2019).
`
`27.
`
`I
`
`consulted
`
`the
`
`Directory
`
`of
`
`OCLC
`
`Libraries
`
`(http://www.oclc.org/contacts/libraries.en.html)
`
`in order
`
`to
`
`identify
`
`the
`
`institution that created or modified the MARC record. Moreover, when viewing
`
`the MARC record online via Online Computer Library Center’s (“OCLC”)
`
`bibliographic database, which I discuss further below, hovering over a library
`
`code in field 040 with the mouse reveals the full name of the library. I also used
`
`this method of “mousing over” the library codes in the OCLC database to
`
`identify the originating and modifying libraries for the MARC records discussed
`
`in this report.
`
`28. MARC records also include one or more fields that show
`
`
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`information regarding subject matter classification. For example, 6XX fields are
`
`termed
`
`“Subject
`
`Access
`
`Fields.”
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd6xx.html (last visited March 18, 2019).
`
`Among these, for example, is the 650 field; this is the “Subject Added Entry –
`
`Topical Term” field. See http://www.loc.gov/marc/bibliographic/bd650.html (last
`
`visited March 18, 2019). The 650 field is a “[s]ubject added entry in which the
`
`entry element is a topical term.” Id. These entries “are assigned to a bibliographic
`
`record to provide access according to generally accepted thesaurus-building rules
`
`(e.g., Library of Congress Subject Headings (LCSH), Medical Subject Headings
`
`(MeSH)).” Id.
`
`29. Further, MARC records can include call numbers, which themselves
`
`contain a classification number. For example, a MARC record may identify a 050
`
`field, which
`
`is
`
`the
`
`“Library
`
`of Congress Call Number.”
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd050.html (last visited March 18, 2019).
`
`A defined portion of the Library of Congress Call Number is the classification
`
`number, and “source of the classification number is Library of Congress
`
`Classification and the LC Classification-Additions and Changes.” Id. Thus, the
`
`050 field may be used
`
`to show
`
`information regarding subject matter
`
`classification.
`
`30. Each item in a library has a single classification number. A library
`
`selects a classification scheme (e.g., the Library of Congress Classification
`
`
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`scheme just described or a similar scheme such as the Dewey Decimal
`
`Classification scheme) and uses it consistently. When the Library of Congress
`
`assigns the classification number, it appears as part of the 050 field, as discussed
`
`above. For MARC records created by libraries other than the Library of Congress
`
`(e.g., a university library or a local public library), the classification number may
`
`appear
`
`in
`
`a
`
`09X
`
`(e.g.,
`
`090)
`
`field.
`
`See
`
`http://www.loc.gov/marc/bibliographic/bd09x.html (last visited March 18, 2019).
`
`31. When a MARC-compatible library acquires a work, it creates a
`
`MARC record for its copy of the work in its computer catalog system in the
`
`ordinary course of its business. This MARC record (for the copy of a work
`
`available at the particular library) may be later accessed by researchers in a
`
`number of ways. For example, many libraries, including the Library of Congress,
`
`make their MARC records available through their website. As an example, the
`
`MARC record for the copy of The Unlikely Spy, by Daniel Silva,4 available at
`
`the Library of Congress can be viewed through the Library of Congress website,
`
`at
`
`https://catalog.loc.gov/vwebv/staffView?searchId=20265&recPointer=1&recCou
`
`nt=25&bibId=2579985 (last visited March 18, 2019). One could, of course,
`
`always physically visit the library at which the work is available, and request to
`
`see that library’s MARC record for the work. Moreover, members of the Online
`
`
`4 The Unlikely Spy is a 1996 novel written by Daniel Silva, who happens to be
`one of my favorite authors.
`
`
`
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`Computer Library Center (“OCLC”) can access the MARC records of other
`
`member institutions through OCLC’s online bibliographic database, as I explain
`
`further below.
`
`32. The OCLC was created “to establish, maintain and operate a
`
`computerized library network and to promote the evolution of library use, of
`
`libraries themselves, and of librarianship, and to provide processes and products
`
`for the benefit of library users and libraries, including such objectives as
`
`increasing availability of library resources to individual library patrons and
`
`reducing the rate of rise of library per-unit costs, all for the fundamental public
`
`purpose of furthering ease of access to and use of the ever-expanding body of
`
`worldwide scientific, literary and educational knowledge and information.” 5
`
`Among other services, OCLC and its members are responsible for maintaining
`
`the WorldCat database (http://www.worldcat.org/), used by independent and
`
`institutional libraries throughout the world. All libraries that are members of
`
`OCLC
`
`are
`
`MARC-compatible.
`
`See,
`
`e.g.,
`
`https://help.oclc.org/Metadata_Services/OCLC-MARC_records/About_OCLC-
`
`MARC_records (last visited March 18, 2019) (“OCLC-MARC records describes
`
`records
`
`produced
`
`since
`
`November
`
`1993.”);
`
`https://www.oclc.org/support/services/worldcat/documentation/cataloging/electr
`
`
`5 Third Article, Amended Articles of Incorporation of OCLC Online Computer
`Library
`Center,
`Incorporated
`(available
`at
`https://www.oclc.org/content/dam/oclc/membership/articles-of-
`incorporation.pdf; last visited March 18, 2019).
`15
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`
`onicresources.en.html (last visited March 18, 2019) (“Like the two superseded
`
`OCLC documents, this revised set of guidelines is intended to assist catalogers in
`
`creating records for electronic resources in WorldCat, the OCLC Online Union
`
`Catalog. These guidelines pertain to OCLC-MARC tagging (that is, content
`
`designation). Cataloging rules and manuals (such as AACR2) govern the content
`
`of records. You should implement these guidelines immediately.”).
`
`33. When an OCLC member institution acquires a publication, like the
`
`other MARC-compatible libraries discussed above, it creates a MARC record for
`
`this publication in its computer catalog system in the ordinary course of its
`
`business. MARC records created at the Library of Congress are tape-loaded into
`
`the OCLC database through a subscription to MARC Distribution Services daily
`
`or weekly. Once the MARC record is created by a cataloger at an OCLC member
`
`library or is tape-loaded from the Library of Congress, the MARC record is then
`
`made available to any other OCLC members online, and thereby made available
`
`to the public. Accordingly, once the MARC record is created by a cataloger at an
`
`OCLC member library or is tape-loaded from the Library of Congress, any
`
`publication corresponding to the MARC record has been cataloged and indexed
`
`according to its subject matter such that a person interested in that subject matter
`
`could, with reasonable diligence, locate and access the publication through any
`
`library with access to the OCLC bibliographic database or through the Library of
`
`Congress.
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`
`
`16
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`1.
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`Fields 008, 005, and 955 in MARC Records as Indicators
`of Public Accessibility
`
`34. When a MARC-compatible library creates an original MARC record
`
`for a work, the library records the date of creation of that MARC record in field
`
`008, characters 00 through 05, in the ordinary course of its business. See
`
`http://www.loc.gov/marc/bibliographic/bd008a.html (last visited March 18,
`
`2019). For OCLC member institutions that use OCLC software to create original
`
`MARC records, the date of creation in field 008 is automatically supplied by the
`
`OCLC software. The MARC record creation date in field 008 thus reflects the
`
`date on which, or shortly after which, a work was first acquired and cataloged by
`
`the library that created the original MARC record.
`
`35. When other MARC-compatible libraries subsequently acquire their
`
`own copies of the same work, as mentioned, they create MARC records in their
`
`own computer catalog systems for their copies in the ordinary course of
`
`business.6
` They may use a MARC record previously created for that work (by
`
`another MARC-compatible library) to create their own MARC records for their
`
`own copies of that same work.7 The previously created MARC record used by
`
`subsequently-acquiring libraries to create MARC records for their own copies
`
`
`6 Initial contributions to the bibliographic database for a work are called “master
`records.”
`7 When a local library uses a master record in OCLC and produces (or
`downloads) it to the in-house system, the three-character symbol for the
`subsequent library is added to the holdings for the work.
`17
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`may be obtained through the OCLC bibliographic database, as described above.
`
`If, when creating a MARC record to represent its own copy of the work, the
`
`subsequently-acquiring library uses the master MARC record in its original
`
`form, the subsequently-acquiring library cannot reenter data into the 008 field;
`
`therefore, the date in the 008 field will continue to reflect the date the MARC
`
`record was initially created by the originating library. On the other hand, if the
`
`subsequently-acquiring library modifies the previously created MARC record
`
`when creating its own MARC record for its own copy of the work, the
`
`subsequently-acquiring library may enter into the 008 field of its own MARC
`
`record the date its own MARC record was created.8 But the library that created
`
`the original MARC record used by the subsequently-acquiring library would still
`
`be reflected in the MARC record of the subsequently-acquiring library in field
`
`040, subfield “a”. Thus, the work identified by any MARC record possessed by
`
`any MARC-compatible library would have been accessible to the public at least
`
`as of the date shown in the 008 field, or shortly thereafter, either from the library
`
`that possesses the MARC record itself, or from the originating library indicated
`
`in field 040, subfield “a”. As discussed, a MARC-compatible library in the
`
`ordinary course of its business creates a MARC record in its own catalog system
`
`
`8 This practice is not required by, but is nevertheless consistent with, the MARC
`standard. Many MARC records exist today whose 008 fields indicate when the
`first original MARC record for a work was created, rather than when a derivative
`record was created based on the original MARC record by a subsequently-
`acquiring library for its own computer catalog system.
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`for a work when it acquires a copy of that work.
`
`36. Moreover, when a MARC record is created by a library for its own
`
`copy of a work, field 005 is automatically populated with the date that MARC
`
`record was created
`
`in year, month, day format (YYYYMMDD). See
`
`http://www.loc.gov/marc/bibliographic/bd005.html
`
`(last visited March 18,
`
`2019).9 Thereafter, the library’s computer system may automatically update the
`
`date in field 005 every time the library updates the MARC record (e.g., to reflect
`
`that an item has been moved to a different shelving location within the library).
`
`Id.10 Thus, the work identified by any MARC record possessed by any MARC-
`
`compatible library would have been accessible to the public at least as of the date
`
`shown in the 005 field, or shortly thereafter, from the library that possesses the
`
`MARC record itself. As noted, because the 005 field may be updated each time
`
`the library updates its MARC record, the work identified by the MARC record
`
`may, in fact, have been accessible to the public from that library much earlier
`
`than the date indicated in the 005 field.
`
`37. Moreover, MARC records for copies of works available at the
`
`Library
`
`of
`
`Congress
`
`can
`
`have
`
`a
`
`955
`
`field.
`
`See
`
`http://www.loc.gov/cds/PDFdownloads/dcm/DCM_2007-03.pdf
`
`(last
`
`visited
`
`
`9 Some of the newer library catalog systems also include hour, minute, second
`(HHMMSS).
`10 Field 005 is visible when viewing a MARC record via an appropriate
`computerized interface. But when a MARC record is printed directly to hardcopy
`from the OCLC database, the “005” label is not shown. The date in the 005 field
`instead appears next to the label “Replaced”.
`19
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`March 18, 2019). The 955 field in MARC records obtained from the Library of
`
`Congress provides Local Tracking Information, which is a record of internal
`
`steps in the cataloging process followed by the Library of Congress. Id. Entries in
`
`the 955 field for a particular work are generated by Library of Congress staff as
`
`the work progresses through the cataloging process. Id. One of the mandatory
`
`fields that library staff must enter for each step is the date (in the form of “yyyy-
`
`mm-dd” or “yy-mm-dd”) the step was taken. Id. Thus, the work identified by a
`
`MARC record possessed by the Library of Congress would have been accessible
`
`to the public at least as of the earliest date shown in the 955 field, or shortly
`
`thereafter, from the Library of Congress.
`
`38. Based on my personal experience as a professional librarian using
`
`the MARC and OCLC resources, it has been my experience that both of these
`
`resources were continuously operational and available since at least 1992.
`
`Indeed, in the course of my work, I have regularly used both of these resources
`
`over the past 30+ years, and I have consistently found the information contained
`
`within these resources to be complete and reliable. I have never found the date of
`
`accessibility as indicated in fields 008, 005, or 955 to be incorrect. And in only a
`
`minute number of cases have I found any errors at all in these records – none of
`
`which affected my ability to render an accurate opinion as to accessibility,
`
`indexing, or subject headings.
`
`
`
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