October 2008 Archives

So, at last, the cards are laid on the table and we see what everyone's holding. And guess who's got the winning hand! No surprise there. Google, by a landslide. (Whoops, my subconscious hopes for election day slipping in there...)

It is absolutely fascinating to finally get to see the musings begin, musings about what this major business deal means for the future: the future of publishing, the future of the book, the future of Google, the future of libraries, the future of education. Well, let me rephrase that: What the major business deal *could* mean for all of the above, and more. Oh, that is the fun part. Imagining the possibilities. Imagining the potential. I'm an optimist and a true believer in the triumph of a good idea, no, a great idea.

So, I want to point you to a couple of commentators that I think are especially exciting, illuminating, thoughtful. I have by no means scoured the blogosphere; rather, these are my heroes, my guideposts, the people I trust to present a point of view that adds value to the discussion:

Library Journal, quoting both blogs below plus several others; Vaidhyanathan's Googlization of Everything Blog; and Larry Lessig's Blog

And my own thoughts on and feelings about the deal are a combination of heartbreak, exhilaration, relief, pride, thankfulness, and gratitude to the libraries who worked so hard to make the deal a better one for the public interest. So it's finally out in the open and those who have been agonizing over it for up to two years can now be joined by the many, many others who are eager to begin to think through, together, what has changed, for whom, how, and what it means.

Heartbreak: It hit me really, really hard to realize that Google utilized fair use strategically to bring the publishers and authors to a deal. My heart was in strengthening fair use. It has been for a long, long time. I felt betrayed, really hurt. But damn it, Google was right. It is right. This deal is way better for everyone, more value, more possibility, more of everything. For fair use to cover digitizing for indexing would have been nice, but it would not have given us this (and there was the chance Google could have lost, though I firmly believed Google would have won). Maybe we could have had both. A S.Ct. win for Google might also have led to a deal, but at much greater expense, much later. Google clearly felt it wasn't worth it, strategically, to add that piece to the picture. What Google did, worked. I got over it.

Exhilaration: From my first reading of the deal, I saw amazing possibilities that just inspired me to no end (after the shock wore off, that is). I was in a semester in my PhD studies where I was trying to generate ideas for a dissertation topic and this deal just spun out possibilities like a tornado. But I couldn't talk about any of them with anyone. What a hellish place that was. The announcement of the settlement dragged on and on and on. The date was always a moving target. Eventually I stopped thinking about it all. I just gave up and moved on. But it is *so* gratifying to see such smart minds beginning to examine the same little gems of possibility, and now there will be lots of people to talk to about it, lots of research projects, and lots of thinking about the future of it all. Is that not absolutely exhilarating?

Relief: Thank God the NDA (nondisclosure agreement) is finished. I'll never sign one again. You get to know incredible things, be a part of incredible things, but you can't talk to anyone about it. I hate that.

Pride: I got to be a part of, a teeny, tiny, eensy, weensy part of, an unbelievably complex (way too complex for me) unfolding of a new way to share knowledge, the knowledge that is out there but that has been forgotten, or soon would be forgotten, if physical books on physical shelves were the only option we had for keeping it alive and integrated into our social and cultural lives. I got to react and say what I liked and didn't like. At least a few people listened. Maybe I made some difference. Maybe not much, maybe not any. But it was really wonderful to be there. (Cf. paragraph on Relief -- legalese for compare for a contrast, or contradiction, the paragraph above on Relief where I say pretty much that it wasn't worth the agony of the nondisclosure agreement -- I guess I'm torn about that.)

Thankfulness: I decided to move on with my studies, as I mentioned above. I am thankful that this deal is finally out on the table and it will become what it becomes (not, what it could be, but what it will be).

Gratitude: I know first-hand that it was extremely difficult for the libraries who put tremendous effort into making the deal better reflect the public interest. I was only involved for 10 months. Harvard, UC, Stanford and Michigan were involved for almost 2 years. Virginia got involved only a few months ago, but pitched right in and went to work. Others followed over the summer and early fall. It was grueling to receive those drafts, repeatedly, to pore over them, analyze them, pushing here, prodding there, gaining concessions from the publishers/authors (never easily, of course), gaining concessions from Google. Those folks worked tirelessly to imbue the deal with public benefit. In the end, not all were satisfied with the degree to which the deal does in fact benefit the public, but they had done the absolute best they possibly could. Everyone anticipates criticism of the deal in this regard, as there was before: did libraries sell themselves short? I frankly don't think it is possible to fairly critique their effort without knowing what they were up against, how tirelessly they worked, how little the publishers and authors ever appeared to appreciate how critical their collections are to the dollars the publishers and authors now expect to make.

If one takes it as a given that this is a good thing (and a realistic, as opposed to idealistic and unrealistic way to get from here to there), libraries are not sitting at the head of the bargaining table, and they are not going to be able to get everything they wanted, or perhaps even much of what they wanted. But they sure put their all into it. It's not possible to walk a mile in their shoes. The walk is over. But I do hope that those who may be unhappy about the shape of the deal for the public (outside the obvious benefit to the public of discoverability, readability and the ability to buy "lost" books) won't be too quick to assume that any library could have done better. If the criticism is that none of us should have been involved at all, well, that's simply a non-starter. Libraries are not sitting the revolution out or trying to go it alone. Partnering is simply a fact of our lives. It always has been and always will be. We don't exist in a vacuum.

I hope the deal gets approved and moves on to implementation. It's exciting. I want it to succeed. It puts lots of feet firmly on the path. Who knows where that path leads? And boy does that make me smile.

Next time: orphan works, the sequel. Oddly, at the same time the publishers and authors were negotiating this deal with Google that structures access to orphan works in a particular way, they were also dealing with the Congressional effort to structure it entirely differently. What was up with that?

Most of the time, working on copyright issues means working in the trenches -- dealing with the day-to-day questions that come up, such as "I want to do this" or "I want to do that, and is it ok?" These can be small questions about a single action or they can be big questions about a project or a business plan. But they keep us very busy, because copyright increasingly affects so much of what our clients do.

When I first started practicing copyright law, these questions were all there was. It took me a long time, actually, it took years for me to begin to sense what was deep beneath the surface of our copyright law that actually accounted for most of the bewildering aspects of what we see and experience on the surface. It's not that they are a secret, these undercurrents. No, most written explanations of copyright start right off with the normal recitation of their existence, but then they go on pretty quickly to deal with the nitty-gritty because that's what really affects us, that's where we have to function. "Is this a fair use?" "Can we digitize this map?" "Is this work in the public domain?" "Can I use this quote at the beginning of chapter 7?" Rarely did anyone ask, "Isn't a law that protects grocery lists and instructions for how to get to Suzie's house for upwards of 100 years, with the full power of the federal government, it's court systems, its law enforcement (federal marshals), now a copyright czar, and if some could have their way, the federal attorney general's office, and the federal prison system, isn't that a little bit extreme? Well isn't it absolutely absurd, if we want to be honest about it?" Do I really need all that "incentive" to make a grocery list? Is that the only way our society can get me to make a grocery list? Why does the government care about how many grocery lists there are in the first place, that it would go through all the expense and trouble it takes to legislate, to pass a massive law like the Copyright Act, to protect them? What on earth is wrong with this picture?

But that's the type of question that surfaces more and more today, because those undercurrents are finally so near the surface that they no longer can be glossed over in the introduction to copyright law. They explain too much. You simply can't understand what has happened to our law -- and what is going to happen to it over the next 10 years -- unless you understand these undercurrents.

Still reading? I'll get to the point.

The presidential race focused its illuminating attention on this conflict last week. Now with all the trouble in the world, it might seem odd that copyright law even makes the cut. After all we didn't hear about it in the debates. No one asks about it in the polls. But it was there: McCain Fights for the Right to Remix on YouTube. Even Larry Lessig, who gave up on all this 18 months ago and went off to deal with the even bigger undercurrent of corporate influence in Congressional legislating, shined a light on it in commentary: Copyright and Politics Don't MIx. It seems that McCain campaign workers, like millions and millions of other American citizens, got to experience firsthand how the law works, the law that McCain himself helped to pass in 1998, and how little sense it makes from a common point of view: the point of view of someone who believes the law should be about things that really matter and not about things that don't.

Fighting for the right to remix? What? Is that like fighting for more efficient and effective health care or fighting to slow down global warming? Or fighting human rights abuse? Hardly. But there it is anyway, this conflict in our law, this conflict between a vision of the law as instrumental, a means to an end, and a vision of our law as natural, an inherent right welling up out of the act of creation, breaking the surface, this time in a presidential race. I never would have believed it could happen.

The problem McCain encountered is that the law is designed to protect property regardless of whether it needs protecting. McCain didn't hurt anyone's or any company's financial bottom line by using his, her or its clip in a video. The owner of the clip doesn't need to keep McCain from using it in order to make a living. The owner may have needed to know that the federal marshals and the federal court system would come to his aid to protect the clip from some things (like copying and distributing his entire work for a profit without having to pay him anything) in order to make the clip in the first place. But that's a far cry from protecting a 10 second clip from being "quoted" in a political advertisement. Why does the DMCA, this law that McCain passed in 1998, protect a 10 second clip from being quoted in a political ad?

The law assumes a "shoot first, ask questions later" stance against anyone who uses any part of another's work. This idea does not arise from the utilitarian, instrumental underpinning of copyright law. Fair use should generously prevent such a silly claim -- that 10 seconds, un-permissioned, should be a compensated financial loss to the owner. No, shoot first, ask questions later comes from the natural law side of things: that every penny that might be made from exploiting a work ought to find its way into the pocket of the copyright owner and the law (the federal government, etc.) ought to do whatever it can to direct that penny to his pocket.

Long terms (forever minus a day); narrow scope of fair use; lack of formalities to indicate a need for and desire to claim protection -- these shape our law around natural rights traditions, bending it away from its Constitutional purpose so clearly and unambiguously described as instrumental: for the purpose of increasing knowledge.

Well, enough of copyright basics 101. Back to the real meat and potatoes of Presidential politics, with only 9 days left...

As Wired reports, Bush Signs Law Creating Copyright Czar | Threat Level from Wired.com, it's official: we've got a cabinet level position vested with fighting a war on copyright infringement. I guess as far as the digital realm goes, the publishers, music execs, recording associations and movie moguls got tired of fighting it on their own. And the war on drugs has been such a success, as a model, that it's easy to see why they thought this might work...

Don't blame the content industries for wanting all taxpayers' (not just universities) to help them. It's an uphill battle that they have absolutely no chance of winning, fighting as they are against the most important and most critical plus that the digital environment provides us: ubiquitous copies, instantly, everywhere, all the time. I'm afraid that the czar will do no better than the industry has done. Considering how our other federal tax dollar priorities stack up, it's rather remarkable that taxpayers will be expected to pay for this use of time, money and effort.