Seeking Legal Protection for Their Web Site, Scholars Make a Deal With U. of Maryland University assumes liability -- in return for a measure of control By LISA GUERNSEY The University of Maryland at College Park is now the official publisher of Romantic Circles, a scholarly World-Wide Web site devoted to discussion of the Romantic period. That might not sound like big news to most people -- or even to the site's regulars. After all, Romantic Circles has used "umd.edu" in its Web address throughout its three-year existence. Many people would naturally assume that the university has been publishing Romantic Circles, or at least sponsoring it. But, as the site's editors discovered last year, even keeping most of the site's material on Maryland's computers doesn't necessarily mean that the university has any formal affiliation with it. And sponsorship is a fuzzy legal concept in itself, lawyers say. Until a few months ago, in fact, the university and the site's editors weren't sure who was legally responsible for the material on Romantic Circles. The site (http://www.rc.umd.edu) posts scholarly articles, hypertext versions of 19th-century texts, logs of discussions among the site's visitors, and more. A lawsuit over copyright infringement or defamation could, hypothetically, hit at any time. If it did, who would be responsible? Would the editors be personally liable? Those questions led Neil Fraistat, an English professor at the university and the site's lead editor, to sign a three-year agreement in January that makes the University of Maryland the official publisher of the site. The site's two other general editors -- Steven E. Jones and Carl Stahmer -- have signed contracts with the university as well. Diane Krejsa, a lawyer for the university, led the negotiations. The agreement, the signers say, represents the first time that a university has legally become the publisher of a scholarly Web site that was born independent of the institution. The site's editors get the protection of operating under the university's legal aegis, while the university gets the prestige of being associated with an award-winning, high-traffic scholarly site -- and gets some measure of control over it. The editors say the deal does not compromise the site's academic integrity, although independent observers say the arrangement bears watching. The new relationship is the culmination of what Mr. Fraistat calls an "agonizing" 18 months of research, intense discussion, and soul searching by both the university and Romantic Circles' editors. Questions abounded over how to define Romantic Circles and who should own, control, and pay for scholarly material that appears on the Web site. The university does not have a traditional scholarly press, so drawing up a publishing contract led its lawyers onto new ground. Even so, the Web site has no easy parallels in the print realm. It can't be called an electronic journal, for instance, because it includes the full texts of books, provides indexes of Web sites, offers on-line conference space, and is constantly changing. Standards for publishing such sites, Ms. Krejsa and Mr. Fraistat say, are still hard to find. "We're attempting to control this when the law isn't even defined," Ms. Krejsa says. Their experience highlights the legal quagmire over ownership and control faced by universities and scholars as more and more material appears on colleges' Web servers. Scholars and students post articles, display photographs or homemade movies, and hold on-line discussions -- often without any consideration of who is legally responsible for what is being posted for all the world to see. University lawyers, however, are giving serious thought to the subject, although most are quick to note that they have no desire to police the on-line material. In fact, they acknowledge that turning a blind eye can work to an institution's advantage. If university administrators don't know that a student or professor has infringed a copyright, for example, the university could argue that it cannot be blamed for not making the student or professor correct the problem. And most universities could also argue that they are simply acting as Internet-service providers who can't be held responsible for what is distributed from their servers. Under that logic, universities would have no more responsibility for Web sites on their computers than for books in their libraries. The blind-eye approach carries risks, however. As litigation proliferates, some universities are becoming less sure that the approach offers them the liability protection they need. Meanwhile, editors of some sites have started to seek information about copyright and libel from their universities. As such discussions spread, structures and regulations have been cropping up. Formal agreements are starting to take shape. Romantic Circles illustrates that shift. In its early years, the Web site's editors let its pages grow freely, building on materials posted by people around the world. Now the editors are worrying about ownership, sustainability, and potential lawsuits. They say that they were willing to give up partial editorial independence in exchange for the security of knowing that an institution was available to help them deal with such issues. Fans of the freewheeling Web, however, may not be so quick to applaud the move. Greg Siering, the editor and publisher of a scholarly Web site called Kairos (http://english.ttu.edu/kairos/), says he too has worried about liability and copyright issues. But he says that he and other contributors to the site -- which offers articles and discussion areas for rhetoric scholars and composition instructors -- don't want to be affiliated with any specific institution. Kairos resides on a server at Texas Tech University, but is not officially published or sponsored by the university. "My biggest fear is that universities will start bringing in lawyers to start controlling what does or doesn't go up on the Web sites they sponsor," says Mr. Siering, who is an English instructor and instructional designer at Ball State University. Preserving the academic freedom of contributors to Romantic Circles was Mr. Fraistat's No. 1 concern, too. "Relinquishing editorial control was a deal breaker," he says. In fact, when Mr. Fraistat first sought Ms. Krejsa's legal advice, three options were available to Romantic Circles: The site could become incorporated independently, with the editors bearing the brunt of costs and responsibility. The site could seek a for-profit or non-commercial scholarly publisher. Or the site could become a publication of the university. The last was the clear winner, Mr. Fraistat says, because the College Park campus was already dedicated to protecting his academic freedom in the classroom and appeared likely to extend that freedom to the Web site. Under the terms of the publishing agreement, Mr. Fraistat and the other editors retain editorial control -- as long as Mr. Fraistat reports once a year to an advisory board made up of Ms. Krejsa, the assistant dean of the College of Arts and Humanities, and other colleagues at College Park. In addition, the copyrights to the site's articles and documents now belong to the university. Contributors may keep the copyrights to the printed versions of their work. The contributors also are now required to sign contracts stating that they are not knowingly breaking any copyright laws in posting their material. In exchange, the editors have gained legal protection. If a lawsuit were to be filed, the university -- not Mr. Fraistat or his co-editors -- would mount the defense. Before the contract was signed, "our houses and personal savings were literally on the line," Mr. Fraistat said in a paper describing the affiliation with the university. The paper was written by Mr. Fraistat and Ms. Krejsa for the Modern Language Association's annual meeting in December. Since giving the paper, Mr. Fraistat says he has received several requests for copies from Web-site editors who are considering formal affiliations with an institution. One advantage of the agreement, he says, is that it gives Romantic Circles a permanent home on a new Web server owned by the College of Arts and Humanities. Before the deal, interior pages of the Web site resided on seven Web servers -- including some at Loyola University Chicago, where Mr. Jones is an assistant professor of English, and at the University of California at Santa Barbara, where Mr. Stahmer is a graduate student in English. In the past month, all of the Web site's materials have been transferred to the new server, which will enable Romantic Circles to develop an efficient search engine for the site and to tally its visitors more easily. The agreement comes with other bonuses. The university reduced Mr. Fraistat's teaching load to give him time to manage the Web site, and agreed to provide $3,000 a year to cover equipment costs and the salary of a graduate assistant. To make financial transactions easier among the site's administrators, the university also appointed the site's two other general editors -- Mr. Stahmer and Mr. Jones -- as unpaid adjunct faculty members on the College Park campus. In return, the university insisted on keeping its domain name as part of the Web address. "This was in the university's interest," says Ms. Krejsa. "We wanted to be associated with a reputable academic Web site." Last year, Romantic Circles was named by the National Endowment for the Humanities as one of the best Internet sites for education in the humanities. It receives nearly 25,000 visitors a month. Building a formal relationship with the university does, however, place some new burdens on the Web site's editors. The university strongly recommended, for example, that they develop "permission-to-link" contracts that must be signed by managers of Web sites to which Romantic Circles provides links from its main pages. The contracts ask external sites to allow Romantic Circles to create connections to their materials. If permission is given, Romantic Circles also asks -- but does not require -- that the administrators of those sites provide notice of any radical changes to the sites' content. Ms. Krejsa says such contracts are becoming common among commercial sites as companies try to control who is benefiting from links to their on-line wares. But most Web sites -- especially in academe -- simply link to other pages without worrying about getting permission. Signing such contracts is often seen as contrary to the unrestrained nature of the Net. "This seemed mad to me at first," Mr. Fraistat says. "But the university has been incredibly generous, so I didn't feel that I was in a position to say, 'I don't care what lawyers say.' It was just one of the concessions that we've had to make." If relations do turn sour, however, both parties have an out. The university can boot Romantic Circles off its server or Romantic Circles can elect to leave, as long as 90 days' notice is given. Mr. Fraistat doesn't expect that to happen, but the university does have some precedent for wanting to remove material from its servers. More than a year ago, a biologist in Britain named Malcolm Young threatened to sue the university for including documents on its Web site that, according to Mr. Young, defamed him. The documents had been posted by Christopher Cherniak, a Maryland professor who was involved in a heated argument with the British scientist. When the university asked Mr. Cherniak to remove his postings, Mr. Cherniak refused, citing his free-speech rights (The Chronicle, November 21, 1997). Although a lawsuit has not been filed, the matter remains in dispute. The contract with Romantic Circles would avoid such a scenario, Ms. Krejsa says. "This gives the university some control, because we've got a contract that defines what the limits are," she says. College Park could simply unplug the site, after giving 90 days' notice, if the university felt vulnerable. That control is what worries Internet veterans like Mr. Siering, the editor of the Kairos Web site. "I would fear that if too many universities started to worry too much and plan for every contingency in terms of copyright or slander, it might put a lot of independent enterprises like Kairos out of business," Mr. Siering says. Even Romantic Circles' editors acknowledge that their formal affiliation with the university means losing some independence, no matter how favorable the agreement's terms may be. "The idea of being tied to an institution is scary," concedes Mr. Stahmer. But how, he and his co-editors ask, can a scholarly Web site sustain itself and brace for worst-case scenarios without financial and legal backing? The site editors weren't about to seek out advertisers and wanted to avoid any commercial connections. "I think it is a real question -- a question for the Web as a whole," says Mr. Jones. Mr. Stahmer and Mr. Jones say that they eventually signed the Maryland contract because they realized that even independent Web sites were already bound to the universities that provided their server space. The institution, for example, could always take the Web pages down. A First Amendment claim might fend off a shutdown in some cases, Mr. Stahmer says, but not everyone has the time or money to hire lawyers to defend such a claim. "There is a lot of lip service about the Web being free," he says. "But it really isn't. It can be taken away from you." Mr. Fraistat, meanwhile, says he is confident that Maryland will abide by its promise to preserve the site's academic freedom on line. "I think it's fair," he says. "These are people of goodwill, who want good research projects to flourish. As long as we are doing what we want to be doing, there shouldn't be a problem." http://chronicle.com Section: Information Technology Page: A25