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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.