SSRN & Copyright Incentives & the NAS

The Social Science Research Network is one of the primary ways that most law professors share drafts of their papers.  In many case, they provide access to their published work there as well.  The ability to post draft papers quickly on SSRN and other sites, such as Berkeley Electronic Press, has really changed the pace (and perhaps the nature) of legal scholarship.

But online business models are always evolving and SSRN is evolving as well.  The latest development, which Paul Caron notes over at TaxProf Blog, is a plan by SSRN to sell hard copies of posted papers: “SSRN to Sell Hard Copies of Papers for $9.99 (With $0 Paid to Authors)” Most law professors received notice of this development yesterday.

The plan created some significant buzz on the cyberprof listserv, with the majority of Internet law professors seemingly less than enthused about it.  Perhaps the most problematic issue is that, according to the email that SSRN sent out, this is “opt out” rather than “opt in.”  In other words, if you don’t let SSRN know that you’d prefer them not to monetize your papers with this service, they’ll be going right ahead.

In my opinion, for various reasons, they should have done this as opt-in, not opt-out.  The original arrangement law profs had with SSRN contemplated exclusively electronic distribution, which is significantly different than the delivery of physical copies.  Additionally, it seems that for some law profs, the notice of this change was routed to spam folders, meaning that they’ll miss the 10-day deadline for opting out.  Other authors may be required to opt out, since they have no right to authorize this particular use of their work, having assigned their copyright already to a law journal or other publisher.  (I wonder how many law profs are digging through their author agreement folders today?)

As a business issue, authorial objections to monetization in this context may seem silly.  After all, SSRN is a free service provided to authors, who get no benefit (other than points in the “rankings game“) from SSRN downloads.  So if authors want to give away their work for free, why should they object (apart from copyright ownership complications) to a company that provides what is primarily an open access platform that is using a business strategy to support its ongoing operations?

This is where things get interesting for me from a copyright theory perspective.  As we all know, the dominant theory of copyright in this country is that granting the exclusive right to control reproduction of the work, etc., to authors results in the prospect of monetary rewards.  That, in turn, creates marketplace incentives which result in the production of a greater number of works.  That increased production, in turn, ultimately benefits society.

Yet as Rebecca Tushnet summarizes here in her “Economies of Desire” piece, that story is primarily a legal myth when it comes to the author’s subjective understandings.  There is scant evidence that the authorial urge, in most rational people, is primarily tied to economic incentives.  And as I argued in my “Digital Attribution” article, one thing that many authors seek from the copyright system, especially in an open access sphere, is some sort of reputational gain, an interest which copyright largely ignores.

Yet when you look at the popularity of Creative Commons CC-NC-BY non-commercial, attribution licenses, you can see evidence of a common authorial mindset: Yes, you can have my work for free as a gift; No, you can’t make money from selling my work unless you share the profits with me.  (That’s the strategy I’ll be using with my new book.) Though it has some significant gray zones (what is “non-commercial”?) the basic idea isn’t at all irrational.

I really wish that our legislators and policy makers would have the perspicacity to see what is going on with online authorship.  If they could gather the existing data on this model of authorship, they could modify the copyright laws in ways that support, rather than discourage, authors who contribute to our information wealth by willingly providing free access to their works.  This has been a theme in my work for quite a while (see this from nine years ago), and last week I was lucky enough to get a chance to summarize my concerns to a committee convened by the National Academies.  They are currently working on a project to gather data about the impact of copyright law on innovation in a digital environment.

My 3 pages of written remarks are posted here as a PDF.  As I note in the closing, there are significant and important copyright policy problems raised by environments where authors are giving away their work to entities that further authorial distributional goals, but have their own interests (e.g. monetization) that are in tension with the interests of authors.  That’s more or less what is going on, I think, with the reactions of many law professors to SSRN’s new move.

It would be great if copyright law could wake up to these new realities.  Yet as I note in my remarks, our current copyright law seems myopically focused on the preserving the economic models of content creation and distribution that dominated the marketplace in the late 20th century.  At some point, I hope, this will change.

4 thoughts on “SSRN & Copyright Incentives & the NAS

  1. There are a lot of interesting facets here. I’ll just note one: given the reaction you describe on the cyberprof list, I suspect there is a strong overlap between law professors who support Google’s “opt-out” approach in Google Books and who oppose the “opt-out” approach taken by SSRN. But aren’t those positions in tension?

  2. Yes, I think so, though I think the tension can be resolved somewhat by focusing on the facts of both situations.

    So Google’s pre-settlement approach was, to the extent I understood it, an effort to scan physical books to make them searchable online, showing users only fair use snippets, and not running adds against the snippets (at least at first). Free and essentially non-monetized (though perhaps with ads?) electronic distribution of snippets is not something I think most authors would find so offensive — though apparently some did. But even if they did, there was a pretty good argument that Google had a fair use right to engage in that use and that the use benefited the public.

    The posture of SSRN “opt out” is a lot different. SSRN will be selling physical copies, not providing electronic access to snippets, and it isn’t clear why these copies are going to cost $10. I guess we can’t know that if we don’t have access to SSRN’s financial operations.

    And to the extent we’re talking about the Google Books proposed settlement and the “opt out” there, I’m actually not sure how most cyberprofs would line up on that.

    Personally, I’ve got mixed feeling, given the use of the class action mechanism in this context, the complicity of the “author” class in the arrangement, the issue of orphans, the antitrust issues, plus a bunch of other things.

    Like Pam Samuelson notes, the suit can be framed as a way to privatize copyright reform, and some of the reforms might turn out well. But again, that should make us think carefully about what role copyright law is really playing today in creative production and whether the law is working in the public’s interest.

    Pam’s paper (on SSRN!)

  3. Hi Greg,

    I’d love your view on the following proposal, if you found the time. You mention the Creative Commons CC-NC-BY non-commercial, attribution licenses. What if statute imposed (by default, but subject to any opt-out/overriding expression of licensing intent, including full rights reservation) CC-NC-BY on all novel works?

    I have argued elsewhere that this ‘NC copyleft by default’ would represent an important nudge in respect of sensible licensing and contribution to the commons; it might also insulate the noncommercial sharers and remixers of the YouTube era that came across unlabelled (no obvious licence/DRM) content and did something wonderfully creative with it.

    There may be other advantages, and serious flaws. I even wonder whether it would be compatible with Berne’s “no formality” and “three step” provisions (though I’m prepared to argue that since copyright is still granted as it is today, and attaches to all new works, and al least commercial and nonattributive use rights, amongst others, are retained without any positive step by the creator. I would also argue that if Berne is preventing this noncommercial nudge reform from happening, it perhaps ought to be revisited)

  4. Hi Phil,

    So making commercial copyright opt-in does raise some significant Berne Compliance issues, yes. (Though I think the general absence of moral rights protections under US law, post-Dastar, also raises significant Berne Compliance issues!)

    Perhaps the most interesting thing about your proposal is that registration and “opt-in” for the commercial benefits of copyright is something that Cary Sherman of the RIAA (yes — the RIAA) actually floated at the National Academies last week. Apparently it is not the official position of the RIAA (no surprise there), but read this at Techdirt:

    The committee actually asked me how I felt about an opt-in approach to copyright entitlements and I explained that I generally supported it, but thought that authors still had certain expectations with regard to free access works and that those expectations should be respected.

    It seems to me that those expectations are often, more or less, in accord with what Creative Commons offers with NC-BY…

    So, in summary, yes — I like your idea. 🙂

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