Noted Without (Much) Comment

Too many items, not enough time. And some of this is on the older side . . . .

Rebecca Tushnet records the gist of last weekend’s TPRC panel on Yochai Benkler’s Wealth of Networks.

The panel presents.
Benkler responds.
The panel, again, and Q&A.

The theme seems to be: Is there anything new here? Just how novel is this “peer production” thing? But the important subtext is: [When] is peer production a sustainable complement to hierarchical, firm-based production, and is it more sustainable today than it has been before?
For more on this same point, take a look at Nicholas Carr’s post on Wealth of Networks from last July, including a lengthy reply by Benkler.

Siva Vaidhyanathan posted the text of his recent essay in the Columbia Journalism Review, Copyright Jungle. Amid what is an entirely helpful summary of copyright for journalists, the paragraph that caught my eye is this one:

Fair use is designed for small ball. It’s supposed to create some breathing room for individual critics or creators to do what they do. Under current law it’s not appropriate for large-scale endeavors — like the Google library project. Fair use may be too rickety a structure to support both free speech and the vast dreams of Google.

If I had time to break down that paragraph sentence by sentence, phrase by phrase, I’d say something like:

Small ball? Not really. When “individual critics and creators [] do what they do,” they’re not playing small ball; they’re participating in criticism and other social forms of creation. (To pick a not entirely random metaphoric parallel, Derek Jeter sometimes plays small ball, sure, but he plays in the major leagues, and he plays for the Yankees, which are both pretty large scale things.) Whether or not fair use “scales,” as in Google’s case, isn’t really a question of whether or not Google plays small ball. The question is whether Google is doing the sort of thing that belongs in “the market,” subject to “market discipline.” If so, no fair use; Google needs to find some other argument, or it needs to pay the publishers and authors, or both. If not, then fair use; Google is on solid ground.

There’s a good case to be made that yes, indeed, Google is a market actor, and that Google can’t claim the legal or cultural privileges of being a “library,” and Siva has made that case eloquently and at length. But that case isn’t an indictment of fair use. It’s confirmation that fair use is a robust thing — when appropriately understood. Is “[f]air use []too rickety a structure to support both free speech and the vast dreams of Google”? Well, yes and no: Journalists ordinarily shouldn’t fear that fair use is such a rickety thing (though they often do, and I understand that, and that’s a topic for another day), because ordinarily, it’s not. Journalists play in their own metaphoric equivalent of the major leagues, and most of the time, when they do what they do, society doesn’t expect them to be market actors. Is fair use too thin to support everyone’s copyright utopia? On that point, certainly, Siva and I agree.