©ollectanea

Lessig' gave a talk about remix culture back in March at TED: How Creativity is Being Strangled by the Law. His talk was just posted this month. For anyone who has seen him give a talk in the last 1 - 2 years, this won't be new, but it's very streamlined and very succinct. The video only runs about 18 minutes and it's excellent -- watch this!

Lessig emphasizes the importance of competition, that "more free" can compete with "less free," that artists' choice (to distribute differently, for example, to make their own works more freely available) is the key to defeating monopoly, and that laws that criminalize our children's creativity are corrosive -- and we can do better.

I have been developing an argument that touches on these same themes at Mass digitization ~ changing copyright law and policy, and in fact I had just posted this new segment last weekend that talks about how the sheer availability of so much good free content online inevitably puts pressure on even Hollywood and the music industries to stop making it hard for people to get to their content (DRM and subscription barriers, among others). Check it out.

Thanks for the introduction, Georgia, and, more importantly, the opportunity to be your guest blogger this month. I can think of no better (or should I say challenging) introduction to the world of blogging than learning it through one of my favorite people (Georgia) on one of my favorite topics (copyright). Yes(!) - there it is - the admission - novice blogger! I've been resisting learning how to blog to some extent because I wasn't sure my overloaded brain (or schedule) could stand another new technology. But I guess you have to keep up or get out of the way.

Georgia also showed me how to get a Google reader and RSS feeds and even some good sites to watch. Annddd, as if that weren't enough, she even suggested this news story as an important and appropriate one to bring to the attention of this blog. Now that's what I call a good friend (although I suspect the rest of the month is up to me). So I'm counting on this being a friendly blog community and hoping you all will help me this month by popping in with your comments and stories -

Georgia was right (a habit of hers) - the news story she pointed me to was fascinating, important, and layered in its implications that become increasingly scary the longer you think about it.

It's called "Music Publisher's Takedown Strikes The Wrong Chord" and Michael Geist wrote it last week. It's one of those David and Goliath internet stories but David dies. However, there's a twist. It turns out that David was really Atlas holding up the world and when he fell, the world fell. How's that for mixing metaphors and drama?

It's about a non-commerical website started in 2006 by a part-time Canadian student as an online library of public domain music scores. It was called the International Music Score Library Project (IMSLP) and by last month it was the largest of its kind on the internet with a million hits a day. Unfortunately, it was taken down by the student October 19th after he was threatened with an infringement lawsuit from an Austrian music publisher called Universal Edition. They wanted the site blocked from EU users and nothing up that was still under copyright in Europe (Europe's copyright term is twenty years longer than Canada's). Everything on the site was in the public domain in Canada so the site was perfectly legal as a Canadian based site.
How sad. The public domain really took a hit on this one. It's bad enough when "arguably" legal sites get bullied out of existence but things have really deteriorated when a lawful site goes down. In fact, it's outrageous.

The notion that "public domain" might be only an off-line concept (see Geist story) is also chilling but I suppose I shouldn't be too surprised. After all, the oft-repeated statement that fair use doesn't apply in the digital world has been trotted out for years. Apparently copyright is only medium-neutral when it meets the needs of the copyright holders.

I agree with Geist when he notes that if Universal Edition is right, we (including online businesses) would have to comply with all the laws of all countries. In this case, there's only a difference of 20 years term being disputed. But is that the only difference between Austrian and Canadian copyright law? If one is expected to comply with Austrian copyright term length, wouldn't it follow that one would have to comply with the rest of it? US copyright law is challenging enough for me.

In the end, I'm left with the feeling that we haven't figured out how to make a forceful and compelling case for the necessary growth and health of the public domain. We need an approach that makes Joe Citizen feel like a rich and thriving public domain is something we believe we're entitled to - like national parks - that needs protection and care and is there for everyone to use and enjoy.

Lessig announced today that Carl Malamud had accomplished a coup: Building the Legal Commons (Lessig Blog). He purchased a huge collection of federal case reports and is making them completely pd -- not just CC licensed for some but not all purposes, but CC licensed for *all* purposes through a new CC license that commits the licensed work to the public domain. I feel like I'm watching one of those amazing movie final scenes where people who have been stunned into submission over the course of the entire movie, one-by-one stand up and finally refuse to go along with atrocity anymore. They just say no. Or, rather, they just say yes -- yes to the protection and promotion of the public domain, not just for some, but for all.

Tears and cheers (the audience is reacting).

After 6 weeks of drafting, posting, tracking blog statistics, and weekly writing in a journal about the experience, I have just completed my blogging experiment at Mass digitization ~ Changing copyright law and policy, by posting the Conclusion today. Here's the first paragraph:

The story of mass digitization’s effect on copyright law and policy is the story of confronting and eventually calming fears. Sometimes the only way to calm fears is just to stand up, stride towards the light switch, and show that there’s nothing to be afraid of. Turn on the light. Look under the bed. Open the closet door. See? There’s nothing there. Didn’t Franklin Roosevelt say something about this?

Since I announced the start of the experiment here on Collectanea, I thought I would announce its conclusion as well. If you haven't visited yet, or if you visited early in the drafting process, you might like to visit again to read the entire draft (7 fairly short sections). Be sure to check out the Project Resources page. It has links to all the online materials referred to in the draft, and other materials that support or illustrate the argument.

It has been a very interesting experience to draft in blog-style. My next step will be to polish the draft and give it journal-style. I will be able to compare the two drafts and perhaps say something useful about how the styles differ. I also have skads of data about daily page views, time on the pages, and how many pages were viewed per visit. It's amazing what Google Analytics can tell you about your blog. If it weren't for Google Analytics in fact (and other blog statistics programs), the story we would relate about our experiences blogging would be far removed from the truth because without stats, we only know readers are there if they comment. Hardly *anyone* comments though. The comment rate on Mass Digitization was roughly .2% -- that's point two percent, not two percent. So, for 1000 pages viewed, the blog received 2 comments. This rate is consistent with rates I've read in broad studies of blogs. Of course, there are exceptions, but most of us are not really visibly building a community of commenters.

But we are reaching people. Those 1000 pages viewed represent about 500+ people who stopped by, even if only for a few minutes. So, the blog entries did get viewed in whole or in part by many folks who might not read the article in its polished journal-style form. It is an interesting hypothesis, how blogs affect scholarship. I will be posting my paper on that subject at the Crash Course when I complete the paper in about 2 weeks. And Mass Digitization will be published on CIP's Website in the spring.

If you are one of those 500+ people, THANK YOU! It is very nice to know you are there --

Well, it's official: The University of Texas at Austin Libraries has launched our documentary blog for our public domain and orphan works project, free*the*books. We invite you to view and post comments! Our new blog is focused on our research about international copyright laws that control the use and distribution of digitized books online.

As a Google Library Partner, UT Libraries will digitize over a million books from its rich collections within the next six years. Digitization of 800,000 books in the Benson Latin American Collection began in June of this year followed by this companion project to develop an authoritative process for determining the copyright status of books published in various Latin American countries and to identify foreign works in the public domain.

We have found little guidance to help us reliably identify which of our books are already in the public domain so we are piloting a project to develop new tools for ourselves and for anyone who wants to tackle these difficult public domain problems. We will document our process, our progress and our results on the blog's pages along with links to web resources we find useful.

The initial pages of the blog include online resources to determine critical author birth and death data, prototypes of legal evidence tables and draft guidelines by which books, wherever published, may be determined to be in the public domain

We will be adding features, more pages and new posts to the blog on a regular basis and from time to time will also have guest contributors to add variety and fresh perspectives. We invite suggestions and comments from other Google Library Partners and anyone undertaking similar or related projects.

Email us at freethebooks@gmail.com or IM us at our Meebo widget in the sidebar of the blog. We are here; we are building an evidence base and we are looking for virtual partners!

I have read a number of things lately that reinforce the idea that copyright terms should be shorter to optimally promote the creation of new works. I blogged about two articles just last week, in particular, Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, which concludes that 15 years is optimal. Today, Peter Suber notes that, in accordance with the original term of copyright, 14 years, John Ockerbloom is dedicating the works he authored when the Web was new (1993) to the public domain, as part of a celebration of public domain day: Peter Suber, Open Access News -- How to celebrate public domain day. Since reading Polluck's article, I've been contemplating adopting the Founder's Copyright for the Copyright Crash Course, so today, after reading Suber's post celebrating Public Domain Day, and having had a couple of weeks to think about it, I have decided that I will indeed adopt the Founder's Copyright for the Crash Course.

I went to the Creative Commons website to get the little "FC" icon and paste it on the Crash Course homepage, alongside the current CC 3.0 license I use, and discovered that it's not quite that easy. Unlike the other licenses, which give the public rights to use my works, but which don't divest me of the copyright, the Founder's Copyright actually entails a sale of the copyright in the Crash Course to the Creative Commons, the listing of the Crash Course in a registry with a notation about when it will enter the public domain, and an option to renew the copyright for an additional 14 years at the end of the term if I want to. That would be 2021. I can't imagine in any wild dream that the Crash Course still has value then, but whether it does or not, I thought about it, and I want others to take what's of value and reuse it by then, at the latest. I already have an attribution share-alike no commercial use license (the 3.0 license) on the Crash Course, so this just seems like a good next step. I'm only sorry that it's a bit more complicated than the other licenses, because I suspect that discourages many people from opting for it. For example, I would like to opt for a 14 year term for everything I have written since I started practicing law (some of which would be pd by now with a 14 year term), but of course, that's impossible to apply in practice. I can't even identify all those works or find copies of them. Just think about the nightmare it's going to be to sort out who can do what with what for works that aren't on the Web with attribution and clear rights allocated to the public, to say nothing of death dates, certain, etc. Just when the Internet has made it possible for us to benefit in concrete ways as never before from sharing our works with others, the law has made it almost impossible to do so legally. What is wrong with this picture?

Actually, it makes me want to just opt for public domain right here and right now. Why wait 14 years? Why not just create my own copyright notice that unambiguously dedicates everything I do from this moment on to the public domain? Well, there's attribution. That's about the only thing standing in the way. If you care about attribution, the pd is not quite the perfect fit it might otherwise be. Well, 14 years with a CC 3.0 should do the trick. That's what I'll stick with for now. Going forward, certainly, if not going back.

I discovered a couple of papers recently that focused my attention on the public domain, as what's left when copyright gets through with "protecting" a work from, from, well, from what I am not sure any longer, but Bill Patry's piece seemed to pull things together in a way that compelled me to write about it all. In The Patry Copyright Blog: The Global Garrotting of the Public Domain, Patry recounts how we got where we are today, with respect to the length of our terms, and how, in Korea, the longer terms are actually threatening to harm the Korean publishing industry (which translates many foreign language works into Korean). As always, Patry's posts are eloquent and powerful, so I recommend you read them for yourself.

But I also want to draw you attention to two papers published recently on the subject of the one-way ratchet, the continual lengthening of the term, the continual heightening of the walls of protection: Rufus Pollock's, Forever Minus a Day? Some Theory and Empirics of Optimal Copyright, and Neil Netanel's, Why has Copyright Expanded? Analysis and Critique.

Both of these articles raise the question in my mind of whether the assumption that the ratchet can only go one way is really accurate. If we begin to see more evidence such as Pollock's, empirical evidence that the length of term is counter-productive, that a copyright can be so strong that it harms productivity, why couldn't we assume that at some point, law makers would have to respond and not only stop piling on the protection, but actually scale it back?

If law makers cannot respond, then our law truly will become irrelevant. It would be like legislating that balls thrown in the air must not come down. You can legislate all you want in the face of the fact of gravity, but it won't change the laws of gravity. People will just ignore the silly law, right? Why should we think that copyright law should be any different, that we could legislate against economic realities, flout those realities, and still be respectable?

Last year I was not able to attend the CIP's annual conference, but I've caught quite a few of them over the years. This one is special for me, however, because as the Center's Virtual Scholar, I have had the honor of participating in the planning. Kim Bonner, the Center's Executive Director, is at the helm of the planning process and has put together a great lineup of events and speakers. At the top of the list is Jamie Boyle, Duke law professor and advocate of the public domain. I am looking forward to meeting him and hearing what he has to say.

I, too, am speaking at the conference. I plan to discuss an idea I am working on as a possible dissertation topic that fits well with this year's CIP theme: Copyright Monopoly.

The lineup is widely diverse, including speakers representing content industries (Copyright Alliance, CCC), law professors and practicing lawyers, librarians and lawyer librarians, and intermediaries like OCLC and Google, among others.

The conference also features a new format for day three -- a series of roundtable discussion groups focused on what you can take back home with you to put what you have learned into practice.

Hope to see you there!

Lending credibility to the idea that Lessig may run for Congress in a special election to replace the late Congressman Lantos on April 8 (less than 2 months from now), he reportedly is "away with my family this weekend to think things through," according to an ArsTechnica story: Netroots seek to send legal scholar Lessig to Congress. Wow. Imagine Larry Lessig on the floor of the House of Representatives. I find that image stunning. Not that I imagine he'd be a lifer. He has other mountains to climb, no doubt. But if he wants to learn all he can about corruption, what better place to go? (I feel compelled to point out that this is meant as a joke, but on the other hand, is it really a joke? Is this something to keep politely pretending doesn't exist, like a naked emperor parading down the street in his new clothes?)

Seriously, as we all must know, Lessig's intention *is* to study corruption in Congress, specifically, the system that he has identified as at the heart of Congress' failure to respond in the public's interest to many legal issues -- lobbying, as he has indicated on many occasions. To bring it home, there's the inevitable Disney demand for another 20 years of copyright protection just over the horizon (2017) and we have to come to grips with the fact that arguments aside, if those who oppose such an extension don't find deep pockets of support (pun intended), we might as well not waste our time.

So it's Monday. I'm feeling particularly cynical. Sorry. I wonder if Lessig's decision on running will reflect his cynicism, or lack thereof. Where can he do more about corruption? From within the system, or outside it? Clearly he can *learn* more about it from inside, but can he do anything about it from inside?

One of the widgets I have on my Netvibes homepage is a box that allows me to keep certain searches running in multiple search engines, or of different kinds of content (blogs, websites, news sites, technorati -- whatever) and I keep it set to run a search for 'economics public domain copyright.' It always shows me a feed with half a dozen things in it from whatever site or search engine I have selected. I have to remember to change the search engine/type of content from time to time to cast a broader net. Today, the widget turned up this gem: Rightscom Projects: Public Domain in Europe.

I have been obsessing a bit lately about 2017 and what's going to happen when Disney pushes for another 20 year extension to the term of copyright. And most folks I talk to don't try to dissuade me from worrying about it, but 9 years is a long time. It seems quite likely that access to and use of public domain materials is going to be much easier over the next 10 years. Google Book Search, for example, makes public domain materials much more accessible. So do libraries acting on their own and in collaboration with other non-profits. And there's the Internet Archive (and used to be MS Live Search Books) and Project Gutenberg. So maybe all this data *is* going to start rolling in that shows how much value all that access and use really has, so that next time maybe those who want an extension will have to justify their economic benefits against the public benefit, instead of everyone assuming that there isn't much public benefit other than the benefit an individual/massive corporate copyright owner gets from a longer term.

In the US we should have our own data stores that we could tap to develop this kind of evidence. It really sort of surprises me that Europe is ahead of us here. What with the author's rights/natural rights frame of reference there, I would have thought they might not see any downside to eternal copyrights (forever minus a day -- see below).

Rufus Pollock is one of the investigators on the project. I just recently learned about him because an article of his came to my attention (probably in the same way that this EC project did):

Pollock, R. (2008, February 16). Forever minus a day? Some theory and empirics of optimal copyright.

I've written about this subject a bit on my research blog,

Further, the same technical and market factors that will likely enable identification of and payments to authors and publishers for uses of their older works will also likely yield data that could demonstrate the relative values to them and to the public for access to and use of both their works and public domain works. These data may show that the public benefit from use of public domain works outweighs the monetary benefit to any particular author or even all authors combined. It will be a challenge to quantify the benefit to the public, but that's precisely the reason to get started now, because these same data may make it easier to support economic theories of copyright that suggest that the longer terms are, the better (Yoo, 2007, p. 85-86).

Maybe I should just move to France for a couple of years, join their project and do research over there. I actually thought about Europe in the abstract, but had pretty much dismissed it (like I know a lot about European copyright -- no I don't). What a way to learn how to do research though.

Wake up!!

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?