Connecting Some Copyright Dots

Update (10/25):  Siva Vaidhyanathan has some strong words disagreeing with this post.  I’ve posted a comment at his blog.  He may think that we disagree; I think that we don’t.  In part our exchange reminds me of The Princess Bride (“You keep using that word. I do not think it means what you think it means.”); in part it reminds me of Jerry Maguire (“You think we’re fighting, and I think we’re finally talking”).

Some thoughts on a cluster of interesting recent notes from the copyright front:

More below the jump.

 

From this morning’s NYT:  “Libraries Shun Deals to Place Books on Web“:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections.

The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance, a nonprofit effort aimed at making their materials broadly available.

Libraries that agree to work with Google must agree to a set of terms, which include making the material unavailable to other commercial search services. Microsoft places a similar restriction on the books it converts to electronic form. The Open Content Alliance, by contrast, is making the material available to any search service.

From the WSJ:  “Disney, Microsoft Lead Copyright Pact”  [HT: Siva]

Disney and Microsoft, which have been negotiating a pact for the past nine months, have pulled together a group that also includes General Electric Co.’s NBC Universal, Viacom Inc., CBS Corp., News Corp.‘s Fox and MySpace units, Veoh Networks Inc. and Dailymotion SA. Notably absent is Google Inc., which had been in discussions about possibly joining the group.

The copyright holders in the group have agreed not to pursue Internet companies for infringement claims if their sites adhere to certain principles. Those principles include eliminating copyright-infringing content uploaded by users to Web sites, and blocking any infringing material before it is publicly accessible.

The pact is unusual in the number of companies involved, but the agreement isn’t legally binding. It is more of a sign of trust-building among the companies, according to people familiar with the pact.

The companies have acknowledged the technology that exists today to block copyright-infringing material isn’t perfect. Therefore, the pact’s principles require that the companies simply make their best effort.

From Tim Wu in Slate:  “Tolerated Use: The Copyright Problem” [part of a broader series of essays on “American Lawbreaking” — what laws we’re “allowed” to break:

This spring, at the Max-Planck Institute in Bonn, Germany, I gave a talk on the phenomenon of tolerated use, and in the audience was Stanford professor Larry Lessig, a Thomas Jefferson figure in the information revolution. “So here’s what I want to know,” he asked. “Why should we tolerate tolerated use?” His point: If you care about free expression and the core reasons for our copyright law—i.e., protecting the artists—why would you put up with a system that makes something like fan art illegal and then tries to ignore the problem? Surely the right answer is to fight for reform of the copyright law: Have the law declare clearly that most noncommercial activities, like fan sites and remixes, are simply beyond the reach of the law.

Lessig has a point. It is hard to see how anyone could endorse a system that declares many inoffensive activities illegal, with the tacit understanding that the law will usually not be enforced, leaving sanctions hanging overhead like copyright’s own Sword of Damocles. The symbolic legal message is preposterous: “Remember, copyright is important, and you’re breaking the law and you may face massive fines. But on the other hand, your site is totally great, so keep going!”

But there’s a reason we do things this way: political failure. The failure in this case is one of the oldest stories in political economy. Big media is the kind of politically effective group that economist Mancur Olson recognized back in the 1960s: small, well-organized, and with much to gain from government. Meanwhile, all the people sitting around in basements creating fan sites and YouTube videos are, to Washington, political eunuchs—too diffuse and underfunded to exert much influence on the nation’s laws. It all boils down to this: Harry Potter fanboys don’t have K Street representation. Consequently, the political system spits out one kind of answer—an answer friendly to the “property interests” of powerful media companies but one that all but ignores the interests of the basement-dwellers. The formal result of that is what we have today: a copyright law that covers almost everything we do in the digital world.

What do these stories and developments have in common?  As lawyers and even more so, as content “creators,” “users,” “archivists,” and “researchers,”  we believe that we are given a world in which the Law (note the capital L) says X and any failure to comply with the Law is “illegal.”  From a “progressive” or “liberal” standpoint, we believe that private companies are presumptively bad and Big private companies are presumptively evil, and combinations of Big private companies are almost too scary to imagine.  “Not-for-profit” organizations are good, universities are better, and libraries and librarians are happy warriors for the public interest. 

In the examples above, therefore, (first) Google and Microsoft are scanning millions of books as part of a secret plot to control our brains; (second) Microsoft and Disney are sending a sinister symbolic message about User-Generated Content; and (third) the fansite community has internalized the evildoers’ message.  The Law might change all of this, but Real Change is blocked by the political power wielded by Big private companies. 

My lightning quick summary is rhetorically overdone, but I think that it captures an important part of the copyright / information / knowledge “debate” of recent years. 

And I think that once the more overheated rhetoric is pulled aside, none of these three propositions really survives.  The Law isn’t necessarily X.  Private companies are not all bad; Big private companies are not all evil; not-for-profit organizations and universities and even librarians have deeply mixed motives.  Consumers and users and researchers need not internalize the rhetoric of tolerated lawbreaking, but their only alternative is not resistance on the path to revolution, blocked by the Powers That Be.

Do we need a new vocabulary and a new syntax to describe this landscape?  I think so.  What would those look and sound like?  More (I hope) shortly.

10 thoughts on “Connecting Some Copyright Dots

  1. Mike, the fact that you’re even questioning the rhetoric shows that you’ve already been co-opted.

    Seriously, the “Tolerated Use” issue gets replicated all over the place in law. You don’t need a conspiracy theory to explain it. Ellickson’s cattle ranchers, in being subjected to the vicissitudes of the concept of negligence rather than their preferred bright-line rule of “open-range” vs. “closed-range”, were not simply the victims of an insurance company/judicial system “public choice” plot.

  2. Bruce,

    You and I agree on this. My question (issue? challenge?) is to describe the upside of what we see without (i) ignoring the costs or (ii) inviting the conspiratorial critique. Is it possible to pull this off?

    Mike

  3. But let’s always remember that a lot of these private companies are required by law to maximize shareholder value. As Ackerman and Heinzerling note in their book Priceless, “anything profitable that is not prohibited by law is likely to occur. . . . when harms stretch out over decades or even generations; when outcomes are uncertain; when risks are shared or resources are used in common; when the people ‘buying’ harms have no relationship with the people actually harmed–then we are in the realm of the priceless, where market values tell us little about the social values at stake.” (17; 9)

    What are the librarians’ “deeply mixed motives”? I need to read the whole NYT piece, but I think one might be reassured that they are trying to get a digital archive that is a true public resource, rather than a property of one company.

  4. “Mixed motives” is ambiguous. Librarians, like the rest of us, typically are pulled in multiple directions by institutional imperatives, and it’s important not to idealize them any more than we romanticize authors or songwriters or demonize corporate value-maximizers (see Michael Clayton? excellent film!). Librarians want to serve their constituencies, typically by providing information and access to information without restriction. But there is regular pressure on acquisition budgets and on the cost of space. Licensing the digital may help on both fronts, and licensing terms obviously can be (potentially) problematic. And don’t forget that corporations and law firms employ librarians, too.

    Holding out for the ideal on terms of public access may delay (narrower) access to a wide but imperfect range of materials. For example, I’d love to house my papers in a true non-profit public archive hosted and managed by my university, or by a university-based consortium. I make do with SSRN and Bepress, because my university has no resources to commit to such an enterprise. I’m not necessarily down on SSRN or Bepress; I’m not automatically suspicious of people who are trying to make money. But I’ve met enough altruists in my life not to be skeptical, at times, of everyone.

  5. That clarifies a lot–thanks! Yes, we shouldn’t allow the perfect to be the enemy of the good.

  6. “Is it possible to pull this off?” Probably. But I think the real question is going to be, “Will anyone pay attention to it?” Apocalyptic rhetoric is what mobilizes the troops and gets the blood flowing, on both (all) sides.

  7. Backing up your point of view (I think), is Benkler, WoN, 394-96

    “Another characteristic of the social-economic-institutional struggle is an alliance between a large number of commercial actors and the social sharing culture. We see this in the way that wireless equipment manufacturers are selling into a market of users of WiFi and similar unlicensed wireless devices. We see this in the way that personal computer manufacturers are competing over decreasing margins by producing the most general-purpose machines
    that would be most flexible for their users, rather than machines that would most effectively implement the interests of Hollywood and the recording industry. We see this in the way that service and equipment-based firms, like IBM and Hewlett-Packard (HP), support open-source and free software. The alliance between the diffuse users and the companies that are adapting their business models to serve them as users, instead of as passive consumers, affects the political economy of this institutional battle in favor of openness.”

  8. Huh? Come on. Nobody this side of Naomi Klein says all corporations are bad.

    Again, I don’t see your accurate complication of the limits that librarians must work with as “mixed motives.”

    I am guilty of idealizing librarians. But that’s pretty damn easy to do. I also idealize fire fighters, police officers, public school teachers, and soldiers. The point of invoking such idealizations in a policy argument is to appeal to core principles. If we have to choose a custodian to manage OUR information, should it be an institution that has a core principles that reflect republican civic virtue? Or should we entrust our collective riches to one with core principles that include massive consumer profiling and extensive trade secrets in the service of quarterly returns to investors?

    I would make an argument for the Army and against Blackwater based on the same framework. Wouldn’t you? Or would criticisms of Blackwater land me in some boat with Naomi Klein and Noam Chomsky?

    It’s about how WE allocate OUR resources. It’s not about corporations being bad. It’s about a particular corporation and its specific attributes, actions, policies, and relationship with essential issues like privacy.

    Please don’t flatten out complicated debates (not in quotes) by jacking a few quotes out of newspaper and Web site articles. You know this is not that simple.

    As for my own motives, if there is an unjustified amount of idealization worth deflating, it’s certainly attached to Google. Just take a look at how our copyright allies declare it to be the Great Savior of fair use and open access.

    The problem is not one of vocabulary here. We are dealing with a 25-year degradation of everything public. I am proud and justified to defend things public when appropriate.

  9. Siva mentions public goods in his piece. I think that understanding public goods, what they are and who should control their allocation is key to understanding the fracture lines that have developed.

    The word “public good” begs to be defined. My 1983 Public Finance text by David Hyman defines public goods as(I quote) “goods whose benefits are shared by large groups of consumers and… the most common means of making public goods available is through political interaction among persons who benefit from the good.” Furthermore, to be a truly public good it has to be “nonrival” i.e. “a given quantity can be enjoyed by more than one without decreasing the amounts enjoyed by others. It also must be “nonexclusive” meaning that “it is too costly to develop a means of excluding those who refuse to pay from enjoying the benefit of a given quantity of a public good”

    Siva mentions police, fire fighters, and soldiers. Economically, they are classic examples of public goods; they are nonrival and nonexclusive. Hence they are provided byu a central mechanism, usually government and “through political interaction among persons who benefit from the good.”

    The problem with copyrighted works, which were traditionally private goods, and the internet, is that the internet has made them nonrival and nonexclusive. They have become public goods. As a culture we sense this intuitively. Sensing this we feel that instead of having these goods allocated by private economic actors, their allocation and availability should be determined “through political interaction among persons who benefit from the good.”

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