Watching the Wheels Go 'Round and 'Round

A sunny Wednesday morning in Austin, Texas. Birds are singing, dozens of kinds of flowers blooming in the garden, the doors open, the air fresh and sweet with the scent of Mountain Laurel. And just a few centimeters below the flowers blooming in the beds is rich and rotting compost, dead leaves and insects and molds, all thriving. Ah, life. What we call the good and the bad, it all keeps keeping on.

It's the same eternal keeping on of the Google Book Search project. It has its blooms and sweet breezes and its rot. The cycles seem longer and slower than my garden's, but things do roll around. Another one rolled around yesterday. The NY district court rejected the parties' settlement agreement. A limb got blown off a tree, so to speak. Everyone's talking about whether to let it lie, pick it up and maybe prune it a bit and root it, or just cut the whole tree down. But there's rejoicing that at least something happened. We are so impatient for the next phase. Even though it's never the end of anything, just another step down the path of ... keeping on keeping on.

I read the court opinion rejecting the settlement. I get it. Perhaps because I don't fear Google (all companies have their trajectory, up -- and down), or the processes that allow companies and individuals in them to test the limits of what's possible, and to succeed and to fail, my main reaction was simply recalling Steve Jobs' commencement speech to Stanford grads about 6 years ago, when he used the rejections he'd received in his own life to make the point that bad things aren't necessarily bad. What may seem bad to us can make things turn a different way, and we find something that we never would have found if we hadn't had the bad turn of events making it impossible for us to do what we thought we should do. Jobs strongly urged the grads not to give up, ever, on what they believed in, even if it was not "working," in that others rejected it. Maybe that's what's going on with copyright these days. Many people believe in ideas that others keep rejecting. But the believers keep turning away from the rejections, the failures, and trying other paths, even though it just doesn't seem to ever work. Actually, you might apply this theory to either side's efforts, and it seems to hold true. Things keep breaking, one way or the other, now good for one side, now bad, over and over.

In truth, it is not an all or nothing thing. Jobs does what he does in a world where many people still vehemently reject him and his ideas. But he found a path where he can do it. And we are fortunate to live in a world that allows him to be creative, along side those who disagree and create what they want too. Something like that might happen with copyright too. Creative Commons is a good example. It exists as a result of the failure of efforts to change copyright law through legislative and judicial channels. The architect of the effort that failed didn't give up; he just invented another way. And copyright law didn't change. People just have an easy way to exercise their choice now, to keep for themselves exclusively only a subset of the whole bundle of rights.

So, will the orphans just have to be lost -- a century's worth of works that no one will ever feel safe using? I really doubt that. There is a way. No one has invented it yet, that's all. But I won't be surprised if it's not what anyone is imagining today. Things have a way of taking very strange and wonderful turns. Even if they seem bad at some point along that way.

Dissertation Proposal -- Next draft

I got a few comments, spoke with a few folks, read a little more, and turned out a second draft. But before I post it, I just have to mention this photo, showing the contents of a package I got in the mail yesterday. It was a Christmas present (and it was not late, rather, it's a gift that literally keeps giving). This is the best Christmas present I've ever gotten and it's going to the top of my list for what to give people from now on: Donorschoose.org let's you give your friends and family the power to help very deserving teachers and their students achieve their educational goals. Check it out. It's pretty neat. They give your friends tons of options to choose from. I chose a teacher who wanted to buy an iMac for her class. You donate your gift card cash value, and then you get an acknowledgment. I didn't expect what came yesterday, however. I got this great notebook full of thank you letters from the students telling me what all they had learned to do with their computer, and 3 photographs of the students and their iMac. Wow. The kids are so cute. Great gift. Thanks Google Book Search.

But now, back to the dissertation. Here's draft 2:

When you wish upon a star –
be careful what you wish for

Introduction

The copyright pendulum had been swinging towards broader, stronger and longer protection for 100 years, but it may have reached a turning point in the U.S. with the measures adopted in 1998. Those protections, including, among others, a term of life of the author plus 70 years and 95 years for works published before 1978, and the anti-circumvention measures designed to insulate the content industries from the realities of frictionless and costless reproduction and distribution in the digital environment, marked the end of the long trend.

Or so the story seemed it might go, as I began to ask what the next 10 years might bring in the development of copyright law, policy and practice. I focused initially on the effects of mass digitization projects on the health of the public domain, the deterioration of library prominence in the roles of discovery and fulfillment, and the evolution of business models in the music, publishing and film industries. I saw economic themes elaborated by Schumpeter, Christensen, Goldstein, Anderson and Boyle, among others, interwoven throughout.

While the surface story appears to be one of increasing access to and usefulness of the kinds of media that once were made artificially scarce (the purpose of copyright’s allocation of the exclusive right to copy to the copyright owner) to provide opportunities to creators to recover their investments, the deeper story is one of ever more adroit exploitation and control by copyright owners. On the surface, it appeared that if content industries (content or content industries defined herein collectively as the products and producers of the publishing, music, movie, theater, dance, two- and three-dimensional art, photography, gaming [and whatever other industries I’m leaving out] industries), and individual creators reduce reliance on copyright to exclude others from copying and distributing their works in digital forms, that is, if relatively free access to and use of such digital content becomes a normal public experience, there may not be much hew and cry in nine years when U.S. media conglomerates push for another 20 year extension to the term of copyright. More pointedly, if there were some downside of an apparent access and use utopia, proponents of the public domain would have those nine years to figure it out and be prepared with appropriate counterarguments. The counterarguments might go so far as completely rejecting any continuing need for copyright in a world where creators did not rely on exclusion to recover their investments, but even if that argument were unlikely to succeed, the full range of arguments against term extension in a milieu of much freer access to and use of others’ works in digital form warrants exploration.

As I examined the possibilities more closely, free access to digital copies only seemed like giving up control. In truth, copyright industries can potentially assert control in more subtle and nuanced ways, and in ways that could be more constraining (as I’ll describe below) than the statutory framework we have now. Jack Valenti may get his (conjectured) wish after all, if posthumously:

"So the effort [by the MPAA] to block something like the Eldred Act is not really about protecting their [motion picture industry] content. The effort to block the Eldred Act is an effort to assure that nothing more passes into the public domain. It is another step to assure that the public domain will never compete, that there will be no use of content that is not commercially controlled, and that there will be no commercial use of content that doesn’t require their permission first. The opposition to the Eldred Act reveals how extreme the other side is. The most powerful and sexy and well loved of lobbies really has as its aim not the protection of “property” but the rejection of a tradition. Their aim is not simply to protect what is theirs. Their aim is to assure that all there is is what is theirs" (Lessig, 2004, p. 255)

I am concerned that very good news for public access to and use of digital manifestations of creative content will, in reality, effectively deflect concern about attempts to extend the broad, powerful and lengthy protection copyright offers now to new lengths, and possibly even new breadths and depths. Today we are only on the cusp of some of the changes that I think will bring into play the forces, and provide the empirical data, that could radically reconfigure the contours of copyright.

There may exist a massive corpus of freely available works, but I am not sure it will act as a sufficient counterbalance of choice against control over commercial exploitation of profitable works that approaches perpetuity. The emerging structure might remind us in some ways of our earlier U.S. copyright regime that only provided protection for works that promised some profitability, and only offered longer terms to those that were really profitable, through renewal – all the rest went into the public domain by either never getting a copyright at all or by not renewing. But in this possible future configuration, the division of works into those protected and those not protected (albeit voluntarily not protected, by refraining from enforcement) might break along a different set of lines – whether the manifestation of the work is digital or analog, where analog embodiments could enjoy near endless protection while digital versions would be freely used, reused and enjoyed for noncommercial purposes, but tightly monetized for commercial purposes, for the same long periods as analog works.

Argument

My argument consists of two propositions and three conclusions. The propositions are listed here as a, b and c; the conclusions are described in the paragraphs numbered 1, 2 and 3, followed by a paragraph that elaborates proposition b:

a. If selling, distributing, displaying and performing digital copies as a revenue generator is losing traction, causing the price of digital copies to trend to zero, and

b. if copyright owners voluntarily refrain from enforcement of the digital "copy" right, at least for nonprofit purposes, functionally (de facto) weakening it so that the strength of digital copyright trends to zero (that is, for digital copies, owners would refrain from all enforcement of their rights against nonprofit users),

1. Then, the floodgates will open on creativity in business model development, freeing content creators from dependence upon control over and sales of copies to recover their investments in creating copyright works. The corpus of digital free will explode.

2. This ubiquitous digital access can extend even to digital derivative works. It’s not clear that they will have any more monetary value than the digital originals from which they are derived. They will face the same pressures as their source materials – competition with immense amounts of free materials, which would seem to drive digital derivative prices toward zero also.

3. Sounds like a good thing from the perspective of access and use, but, as a consequence, will we need and be able effectively to argue before Congress in 9 years (2017) that we need, a vibrant and healthy public domain if there is a vast collection of digital works relatively freely available for mass nonprofit use, through voluntary non-enforcement of copyright?

The 2017 de facto digital copyright I imagine owners voluntarily creating by refraining from enforcement of their rights in digital copies against nonprofit users, might look like this:
1. [exclusive right to make and authorize others to make copies]
2. [exclusive right to create and authorize derivative works]
3. [exclusive right to publicly distribute and authorize public distribution of the work]
4. [exclusive right to publicly display and perform and authorize others to publicly display and perform the work]

Discussion

The natural rights copyright – controlling ex post investment

With a copyright that is significantly de facto weakened (at least along one parameter – digital embodiments, and for nonprofit users and uses), opponents of longer terms will have a tough argument to make because as the perceived strength of copyright weakens (trends to zero), term can lengthen towards infinity without the public experiencing a negative effect (Pollock 2008). The public domain only has perceived value in contradistinction to the protected domain. If the protected domain diminishes in scope, the perceived value of the public domain should diminish too.

Where might the value of 1) digital and 2) non-digital copyright lie nine years from now? Digital copyright may be no more than a right to control ex post investment; non-digital copyright would exist in expression in non-digital (analog and live performances and displays) goods and services:

Digital copyright: The right to control commercial exploitation of derivatives (ex post investment) that is, uses that derive monetary value from use of or association with digital embodiments;

Non-digital (analog) copyright: Exclusive right to exploit the value of things that cannot be digitized or that are embodied in a physical copy (analog copyright: original works of art; works embodied in physical form (books) or applied to physical forms such as mugs/t-shirts/games/toys/etc.; experiences like plays, movies, concerts)

Proponents of a vibrant public domain will argue that the copyright owner should only be able to control investment by licensing the right to commercial benefit associated with or derived from digital copies, or through exclusive control over analog or live-experience exploitation, for a limited time. But ex post investment as a justification for any term has no theoretical stopping point, that is, if I should have the right to control exploitation of my work not because I need the monetary incentive to create, or even to support me while I create new works, but rather, on principle (because I created it), what is the rationale for this right to ever end? Landes and Posner’s indefinitely renewable copyrights suggest one model for providing this kind of extensible right (2002). Their proposal may be quite appealing when balanced with ubiquitous unencumbered digital access. Longer terms are also advocated by proponents of competing conceptions of copyright such as Christopher Yoo, who argues that a term as long as constitutionally allowed (some might say, forever minus a day) will encourage entry into the market (2007). There will be no shortage of arguments in favor of longer terms.

Longer copyright terms will mainly affect (bind) popular cultural works, making them unavailable for commercial exploitation without a license. Disney will argue that it should be able to control commercial uses of Mickey so long as Mickey makes money, especially in light of all the free digital content Disney (by then) will be providing the public. As for less easily identified and reached copyright owners of older works, Paul Heald counters the argument that the copyright owner should control investment in his work (i.e., the derivative right) to increase use of older works, by showing that investment actually increases upon release to public domain. But his study was conducted under conditions of significant transaction costs during the term of copyright (2007). These costs will likely diminish or possibly even disappear entirely in the future. Already we see evidence of this in the combination of growing use of Creative Commons and other online licenses, both market-based and possible statutory solutions to orphan works problems, as well as the development of practical ways to identify and pay creators to use their works (development of copyright evidence bases). Additionally, much of the massive corpus that is born digital can either explicitly or implicitly be relatively freely used and reused for noncommercial purposes and its owners are often easier to contact for commercial exploitation rights if needed. Thus, the economic life of a creative work, the “long tail” of potential consumer demand for use of the derivative right, would theoretically increase with increased access and reduced transaction costs. Authors who see their newly discoverable older works potentially able to earn long tail payments for the entire life of the copyright (even if this proves somewhat illusory given the trend to zero price for digital works) will be standing shoulder-to-shoulder with Disney. Theirs may be entirely a natural rights argument, but that argument tends to resonate with the public and with legislators. “I should be able to control making money from my investment of time and effort in creating my property...”

The counter argument will be one of utility, technical legality and public policy (which, as we saw in Eldred v. Ashcroft (2003), was not persuasive with the Court), that a utilitarian copyright must have a stopping point, and 95 years is long enough. This will likely be a difficult argument to win, although, in fairness, the argument was not forcefully made before Congress agreed to term extension in 1997 (see for example, Dennis Karjala’s account of the only hearing on the issue, which was not announced to the public, and only attended by supporters of the legislation). 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).

Countering a natural rights ex post investment right

The choice to use and enjoy free

Suppose stronger (natural rights’ based) and longer copyrights are in our future. Is the corpus of freely available content the sufficient counterweight to ever more expansive copyrights that it may seem to be? If people have a clear choice when they create to choose from source materials that cost and source materials that are free, is that all that we should ask of a market economy? One might ask the same question with respect to consumption: if one has comparable choices with respect to quality, and wants to pay for something, even if one must pay for it forever (that is, it virtually never becomes public domain), should that be the consumer’s choice?

Rejecting state support of monopolies unjustified by public necessity

On the other hand, copyright is a state-granted monopoly in the U.S., not a natural right, and it ought to bear some demonstrable relationship to the achievement of a goal that can’t be achieved without a monopoly. As creators rely less on copyright’s exclusive monopoly as an incentive to create and rely on it instead to control ex post investment forever (minus a day, or course), is there really a utilitarian justification for copyright at all? A comparison with physical building materials (manufactured and sold to the public without a government monopoly entitling the owner to control others’ investment in creative works that use and build upon the materials) suggests difficulty justifying a government granted monopoly if in fact recovery of investment is simply not problematic because it is not based on control over the sale, use and reuse of copies (the exclusive way that the Copyright Act confers its benefit on creators), but instead, derives from selling other goods and services besides the work itself. If others can earn a living from exploitation of creative works without negatively affecting the creator’s ability to make a living, and perhaps even enhancing his or her ability to make money from the works in some cases (for example, the Brazilian musicians who encourage street vendors to freely copy and distribute recordings of their works while the musicians make their own living from their live concerts), where is the need for a state-granted monopoly as an incentive, at least in digital manifestations?

Indeed, is there even a need to prevent others from performing the musician’s music live as in the Brazilian example, or selling copies of a book right alongside the creator? Often a musician’s particular nuances are what make his or her live performances unique and attractive (Vaidhyanathan, 2003). As examples of freely distributed creative content upon which others are invited to build services and additional products proliferate (for example, the body of open access scholarly literature, book reviews, blogs that post news, freely licensed images, videos and even books), the many ways one can make a living while creating content without relying on control over others’ use and reuse of that content in order to flourish would seem to undermine the argument that copyright is required to stimulate creativity. Given available alternatives to recover investment without resort to monopoly pricing (enabled by artificially preventing duplication, distribution and even public live performance), where would the justification for invoking a state-granted monopoly be?

As the benefits of a limited monopoly diminish, in copyright’s case, its intended incentive to creators, the anti-competitive costs of monopoly increase in comparison. Viewing the economics of copyright from the “innovator’s dilemma” perspective (Christensen, 1997) is helpful in this regard: economic forces that normally operate in the presence of technological opportunities to reduce costs and provide better services or goods from competition are suppressed by imposition of a limited monopoly vested in those who benefit from current cost recovery models and pricing strategies. Creative destruction does not operate within copyright industries the way it does in industries where entrenched interests cannot prevent entrepreneurs from using new technologies to explore new markets. Note that Christensen does not discuss copyright industries (1997). In contrast, in copyright industries, monopolists are able to shut down any innovation that exploits their source materials (examples abound – the string of early lawsuits against innovators in the digital sphere from mid 90’s through the present day).

But the imposition of monopoly rights to stop what would otherwise be normal economic development processes forces innovators to either absorb increased costs by licensing rights from copyright owners (in the unlikely event that the owners want to enable their more entrepreneurial competition) or wait for the development of a corpus of alternative source materials (as has developed in the last ten years), to experiment with new business models built on this freely available corpus, free from dominance by the owners of copyrighted materials for whom it is not in their perceived interests to accommodate innovation. Once a sufficient body of works exists on which experimentation can proceed, the new models can compete with the old and creative destruction resumes. This suppression of competition has significant costs that may be justified if we need the monopoly to stimulate creativity, but where creators are able effectively to reap rewards similar to those of other industries without control over copying, distribution and public display and performance of their works, what benefit does the public gain from the grant of the monopoly?

Summary

Zero is a special price (Shampinier, 2008). Consumption rates increase disproportionately when products and services are free. The future of copyright is bound up in this fact about the nature of the digital networked environment. But the digital environment does not simply encourage free; it actually impairs a creator’s ability to exact a price for digital content. But, in exchange for giving up pricing by the piece, creators are invited to sample (indeed to invent) a plethora of alternative ways to make their livings, alternatives that were never possible (or necessary) before digital networking. Once creators know that there are effective options to recover investment and make a profit that do not pit them against the strengths of the digital network, the need for a state-granted monopoly, the only legal exception to an otherwise illegal business strategy, may be seriously questioned. Long before we reach that point, however, the explosion of freely available digital content may deflect concern about the effect on the public domain of another extension to the copyright term. The opportunity to expand the term will come well before we have sorted out whether, or to what extent, we really need to grant creators a monopoly to increase production (see for example, Pollock, 2007; Yoo, 2007).

If we have not thought through and cannot easily articulate the value of a public domain in a world where the ubiquitous digital network truly recalibrates the relationships among creators, between creators and intermediaries, and between those groups and those who enjoy creative works, we will not be prepared to defend the public domain when copyright owners ask Congress for another term extension in 2017. What difference will another 20 years make? We must be prepared to answer that question effectively for a creative landscape that will be quite different from the one that existed in 1997 when we last faced the question.

Research questions

I would like to explore these problems and opportunities by researching two of the foundational propositions that I suggest, if valid, will potentially erode support for the public domain by 2017, and set the stage for a redefinition of copyright itself beyond that. While I believe there is considerable published support for both propositions generally, it will be helpful to situate the evidence within the milieu of current copyright industries in transition.

The two propositions are 1) that there are viable business models for creating and distributing creative works that do not depend on control over access to or use of digital copies and 2) that zero is a special price for intellectual works. The first proposition may depend for its full manifestation on the validity of the second, that is, it may be that only when copyright owners accept that they must give up reliance on pricing digital manifestations of their works are they likely to be able to envision alternative ways to make their livings as creators. Open access provides a good example of both propositions and their relationship to each other. Open access publishers who provide access to intellectual works without charge have been exploring new business models to recover their costs and produce return on investment for over a decade.

We normally expect that intellectual works are not fungible, and that price, therefore, is not a strong determinant of choice. But studies of rates of citation for journal articles that are freely available online (self-archived by their authors), compared to rates for articles from the same journals that are only available behind barriers of cost and inconvenience, suggest that either price or convenience, or perhaps both, do indeed disproportionately affect choice of what to read in the digital environment (Open Citation Project, 2008). Open access works are more highly cited than comparable toll access works. I would like to explore the citation phenomenon to demonstrate whether there are broader effects of zero price on choice of intellectual content. Free may be a greater determinant of choice in the digital environment than it is in the bookstore or the physical research library.

1. Where is the value in owning a copyright if the owner permits his/her copyrighted works to be digitally distributed, consumed and reused without remuneration?

a. Interview copyright owners who serve content for free, allowing reuse and derivatives, but who nonetheless cover the costs of creating their creative works, for insights into what role the exclusive rights to control copies, derivatives, distribution, public display and performance play in their business models.
i. I may approach this study using focus groups, surveys and interviews, in that order.
ii. I would choose for in-depth interviews creative professionals from industries that are both distribution- and performance-based
1. Publishing
a. Periodicals
b. Books
2. Music
3. Theater or dance

2. Is zero a special price when intellectual content, rather than chocolate or televisions, is the commodity?

a. Analyze usage statistics for a set of books from [existing commercial databases of paid and free written works] to determine if there is a relationship between price and number of downloads, specifically, if a zero price has a disproportionate effect on downloads.
i. Condition 1: free books
ii. Condition 2: very inexpensive books
iii. Condition 3: moderately expensive books
iv. Condition 4: expensive books
v. If zero has the special value here that it has in other contexts, the freely available works will be chosen at a higher rate than the paid works, even if prices for paid works are very low.
b. The four groups of works to be compared (free, low, medium and high priced) can be matched (the groups made similar) by analyzing their usage statistics across a number of libraries over a period of time, to try to assure that all were comparably used/not used when access was the same for all – visit the library and check one out (proxy-pretest quasi-experiment).

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Public Domain Project

I decided to start building a Netvibes site in which I can assemble resources that are germane to my thinking through the idea of doing this, what I'm calling, the Public Domain Project. So far I have a concept map, a new serialization of the Mass Digitization blogging project (I'm working on the revision of that project now, and it's a piece of the PD Project in that it sets the stage for the problem I expect we will encounter in the next decade as prices for content fall and digital copies really do become a dime a dozen or more likely, free), and related blogs, Free the books and this one. I also linked to my delicious/dissertation bookmarks, shared blog posts from Google Reader, and made a Creative Commons license for the site. I've spent the better part of a day on this (revising Mass Digitization and pulling together the Netvibes page). It was raining all day today, and it's the first full day of Spring break. I had planned to work in the garden, but I really did have a good time doing this instead. I am one sick little kitten.

So, I got to meet Pat Aufderheide (Center for Social Media) this weekend at SxSW. She was moderating a panel of film folks talking about relying on fair use in documentary filmmaking. Brewster Kahle (Open Content Alliance) chatted with us for awhile after her panel, and I got to ask both of them what they thought about the project. Admittedly, I wasn't able to do much but articulate my concerns about it at this point, and Brewster in particular was skeptical that things would come down as I suspect they will ("you're dreaming"). He made some very good points, things I'll have to do a lot more thinking about. Pat was encouraging. I do need to float this by as many people as I can as soon as I can. I don't want to waste time on it if circumstances are not really likely to create the kind of problem I think they could.

Anyway, the Netvibes thing is really cool and I urge folks to have a look at it just for ideas about how you can create a home for a project with lots of Web resources all pulled together in a nice tabbed environment, publicly available. You can have your blog right there, your drafts, your bookmarks, audio and video resources. Very nice. I'll get a little more rigorous about it tomorrow, thinking through more seriously what I need. I am using Zotero for my bibliography, so it's right at the bottom of the page, every page, but I know there are things I haven't thought of yet. Maybe Google Docs. Right now I'm drafting in Word and that's not a good thing. Eek. I started using footnotes. Better shake that habit right this minute.

Wa-wa-wa-wa-wandering

I'm having a form of buyer's remorse, I think. Maybe. I've been "trying on" the dissertation topic I reported in my last post, talking about it with everyone I can, anyone who'll listen, and everyone seems to think it's ok, that is, it will work, ca marche. But ca marche is like lukewarm. It's the same problem I encountered last semester -- how on earth can I work on a problem for 18 months that I'm only lukewarm about in its most expansive form, knowing that by the time I get it down to an actual researchable question, it will be deader than a doornail. So my mind has begun to wander. I've spent the last 5 days entertaining other ideas, pretty much any idea that pops into my head. Mostly these ideas come from daily events. Something happens, a conversation, a story I read, a project from work I'm involved in, and suddenly, I'm thinking, "hey, this might make a much more interesting, and just maybe, more important and meaningful subject for my dissertation."

So far, these ideas have played out with similar endings: "Naah, stick with the monograph interface thing. It's going to be more interesting." But then yesterday I came up with one that really seems compelling, one that I feel that I really should do, not just because I find it interesting. It started with a talk I listened to the day before yesterday at a class I attended. Lynn Westbrook (iSchool faculty member) was our guest for my Dissertation Research and Theory class and her focus is the information needs of women in crisis -- the crisis of coming to grips with spousal abuse, though they don't call it that anymore. It's been generalized to anyone you're intimately involved with who is abusive. The first question I asked her was why she had gotten involved in this area of research. Our prof admitted to being reticent to ask that, for fear that the answer was too personal. But for me, this was the most important question, because Lynn works on something that, though it's horrifying for me to even contemplate that it exists at all, let alone to work in that field, her work is going to make a concrete difference to real people. Right now. And tomorrow. And the next day.

Now, her topic is not my topic. I just can't go there. But there are things that mean something to *me* and I can find a topic that is more important than some marginal improvement in how people interact with scholarly literature (at best!). Besides, the scholarly community is either going to figure this out or not, and frankly, the absolute best I might have realistically hoped for was just to create some kind of demo that would be criticized and rejected, or worse, ignored, no matter what its stats suggested, if anything at all. How many research reports have I read about really cool interface or knowledge management or other software ideas that were reported 10 years ago or so, and when I googled them to see where they were today -- nada. They were never followed up on, never built upon. They just didn't make a difference.

I have been steadfastly avoiding choosing a topic that centered on copyright. Everyone expects me to do copyright. I was soooo tired of it when I started this program that for the first year I just avoided it entirely. Now I've seen it creeping in around the edges of things I'm doing, and this semester I've realized that it is an important part of what's happening in scholarly communication (duh, I know) even an interesting part. And I had planned to tie whatever I did in with the mass digitization/business model/free content effect on reliance on copyright (ie, the premise of Mass Digitization, as one part of the story of moving scholarly monographic content to the web), BUT yesterday I realized that there's something more important, more fundamental, and something I may also not be able to really make a difference in, but I should try. I'm better qualified to try to do this than to try to come up with a better monographic interface.

In less than 9 years, we ARE, *are* are going to see another extension to the term of copyright. The curtain on the public domain is going to ossify at 1923. That's 9 years for anyone who thinks this is not a good thing to get our butts in gear and see if a case can be made for the economic value of a public domain. The case for the economic value of eternal protection (forever minus a day, as they say to avoid the Constitutional "problem" of limited times) will be easy to make. It will be beyond obvious (and it will be massively funded by its proponents). Further, the harm from eternal protection will not be obvious as it gets easier to locate copyright owners and get their permission for uses of their works, as orphans are identified, as transaction costs drop to zero and, ironically, as the value of [individual items of] content itself drops to zero.

Although licenses are displacing copyright as the determiner of our rights to access and use others' works, it's just a transition. Licensing is a double-edged sword, but there it is. At least there's the possibility of balance (ie, licenses can be used to lock things down, or to shed excessive rights and even to limit the term or abandon it altogether). But in the mid- to long-term mass digitization and the enormous corpus of web content are pushing abandonment of reliance on copyright, and even on licenses. The price of content is headed to zero. If you don't need to be compensated for its use, then what difference does it make if content is protected or not. The bundle will devolve down to attribution and maybe some limited commercial translation/adaptation right. But what's to keep people from making the argument that with a functionally trimmed down copyright, and friction-less access to the transfer of rights, copyright's danger to the pd is diminished, so what's there to worry about in extending the term of the rights of those who do in fact reap a large economic benefit from exclusively exploiting their properties? On the other hand, will people like that exist in 9 years? Can we imagine a time when Disney won't care about protecting Mickey anymore? Fundamentally, should he be able to protect Mickey as long as Mickey makes money?

Maybe, maybe not. Maybe it is ok for the Internet to eliminate the need for a public domain. But if it's not ok, we have 9 years to make the case and find the funding to match Disney's to present the case to Congress. Otherwise, au revoir, la fin de la fable.

So, is there a dissertation topic in there? How is it an iSchool dissertation and not just a copyright dissertation? I guess I'll think about it for a couple of days.

free*the*books

Well, it’s official: We have 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 research by the University of Texas Libraries 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!

Electronic literature organization and LOC collaborate to celebrate the future of the book

I just joined a new listserv this week, the Association of Internet Researchers, AIR-L, and right away began receiving lots of mail that was sort of interesting, but it's like when you first walk into a party and conversations are already going on and you just hear snippets -- nothing really piqued my curiosity at first. Well, of course, it was overall interesting to read what all is going on in this field and to realize that Internet research is something I'm proposing to do and it's really pretty fantastic!

But this morning I noticed a message about a Library of Congress (LOC) (that sounds familiar) initiative in concert with the Electronic Literature Organization (ELO) (hmmm. not so familiar) to archive 300 e-literature sites. When I read the definition of e-literature (works with important literary aspects that take advantage of the capabilities and contexts provided by the stand-alone or networked computer) I realized that the LOC/ELO project will quietly collect links to the very sites that I am pretty sure are a key to the future of the library. For, as the book goes, so goes the library. We are the handmaidens of the publishing industry (though they've come to see us as their enemy -- how on earth did that happen -- but that's another story). Is the book going, you might reasonably ask. Maybe, maybe not.

The LOC/ELO's main page is a wiki (of course): Main Page - ELO Archive-It Mediawiki. It links to the suggested sites so far, those up for consideration for the 300 site group.

Poking around a bit, I came across Beard of Bees, a journal of poetry that describes itself like this:

Beard of Bees is committed to publishing quality chapbooks by liberated poets from Anywhere. We do not discriminate against non-human or post-human artists. Since the alleged ownership of language and thought is a revolting legal fiction, all Beard of Bees publications are freely downloadable and freely redistributable.

Et voila. I am back directly within the premise of Mass Digitization ~ changing copyright law and policy, that the massive availability of massive amounts of free reading, listening and watching will inevitably pressure the currently massive paid, contract and DRM restricted corpus of old media content to evolve. Its owners will have to abandon that business model in order to compete effectively for our time and attention. Did you notice that the Wall Street Journal followed the New York Times into free yesterday? Where does quality really rank as a consideration when quantity alone, and the sampling, sifting through, looking for, and finally, evaluating that quantity asks of us, can take precious amounts of our time? And that's why Google rules, isn't it?

So, I spent (wasted?) 20 perfectly good minutes that I could have used to rummage around in the library (on it's password protected databases, that is) reading poetry. Here's one of Barbara Maloutas' poems from the collection called, Coffee Hazilly, published just this month:

In every American town. There is a town. In every American.
American town. There is a town. An American constantly in town.
In every American. In a star. Starbucks. Starbucks, the only constant.
In town. In starbucks. Every American. With constant parking. In
parking. In starbucks. Every American with parking. For parking.
American Starbucks. The only constant. Parking.

Me to artists, poets, filmmakers, musicians, singers and authors of books: "You want my attention, *come* and get it." Books will have to compete. "Make it easy or don't make it at all. Not because I'm lazy really, it's just that there's so much to see, to hear, to experience, and your barriers are so tiresome and not worth it."

The producer's are (or better be) listening.

Hey you! Organization-oriented problem solver! We need you over here!

Another of Peter Brantley's posts has intersected with a post from Peter Suber's Open Access News Free online topic pages coming from Elsevier to set my head spinning again. Brantley's post, shimenawa - A Glimpse of Neon is oddly pessimistic and optimistic at the same time. He says, if I understand him correctly, that library cooperation to achieve goals that are beyond individual libraries (like Digital Libraries and a host of other initiatives underway right now) is a dead letter. In the resource discovery context (our supposed forte in the ancient past), the nimble commercial entities are blowing us away. He mentions Google of course, but that's where the Open Access post comes in. Elsevier will launch later this summer a free resource that seems essentially a virtual meeting place built around a subject of mutual interest with links running all over the virtual world, interactive capabilities out the kazoo... We in the research library world are *talking* about how this kind of thing might be a neat idea, how we might work with other libraries in Texas (our Texas Digital Library) and in particular cases, with our Presses, to create inviting environments around which scholars (our scholars we suppose) would gather. Of course we'll do this, on a shoe-string budget, over a long period of development time, slowly, cautiously, testing the water. Wouldn't want to fail would we? How else can we do it at all?

Elsevier, the giant publisher. Google the giant [insert most currently appropriate descriptor here]. Amazon the giant book/everthing distributor. Giant. Can anyone really see our library, any library, ever competing effectively? Not on product; not on service. So collaboration with each other (with other libraries) might be an option, but Brantley has concluded, and I can't say I disagree, that adding together several slow, institutional, conservative, nonprofit entities doesn't make them all of a sudden fast, sleek, nimble, innovative, risk-takers. You can't make a silk purse out of a sow's ear, nor out of two sow's ears.

But as I mentioned, Brantley's post is optimistic too, because he has glimpsed something else libraries could do with their treasure trove in the future. But this treasure trove is not our collections, and the future he glimpses is not about resource discovery -- it's about putting to new tasks our way of looking at the world, our way of organizing things, our institutional skill, our professional forte -- about applying our way of relating to problems to solving bigger of the world's problems than finding resources. Stunned silence, at first, then the wheels start spinning. He's talking about our collaborating with the giants, our supplying a piece of the puzzle that they don't have. But wait, isn't that what Google Book Search Library Partnerships are all about, and haven't we been run over by the Mack truck of collective library opinion on that one for giving away the physical treasure trove? JHC. It's not about the books, real *or* virtual, he's saying. That is just beyond us I think. But it has me going.

Oh, yes, copyright. It all relates back to copyright in some strange way. It's still a problem and worth attention, but I become more convinced each day that the successful arguments for change in the current dynamic will be more favorably advanced by demonstrations of what can and must be done to deal with more pressing problems and how copyright, as currently wielded by its owners, unambiguously impedes progress in those spheres. These same commercial interests that have stood fast on their copyrights, barring the door to innovation in the name of protecting current profits (what else were they supposed to do?), are beginning, one by one, to see opportunity where they only saw threat before. And these opportunities come not from standing on their copyrights, but by standing down, even if only a little.

Of the case for fair use: digital distribution of course materials

I thank everyone who commented on my draft manuscript, On the Case for Fair Use. I incorporated changes that reflected comments I received and appreciate those who took the time to comment. Thanks! Georgia

Pam Sameulson's, Can Copyright Survive the Web by Lightening Up a Little?

Pam Samuelson's recent talk on her 5 year project to rewrite the copyright act is online: Can Copyright Survive the Web by Lightening Up a Little?. What a fabulous project. It will be very interesting to see how it develops and what effect it has.

Turning point in copyright infringement cases | Stanford Center for Internet and Society [beta site]

In a very poignant post, Turning point in copyright infringement cases, author Balazs Bodo at Stanford's Center for Internet and Society lays out what he terms a "lose-lose" choice for Bill Gates. He's got a high profile request to intervene in a prosecution of a teacher in Russia for copyright infringement -- use of MS software without a license.

Interestingly, beyond Bado's commentary, two of the four arguments being made on behalf of the Russian teacher are arguments I outlined in one section of the paper I blogged here over the fall semester, On the Case for Fair Use, about the viability of a fair use claim for electronic reserves and digital distribution through courseware platforms like BlackBaord. A third argument has been floating around for awhile, the idea that remedies are out of proportion to the harm to the copyright owner.

I referred to the argument generally as a dysfuntional market argument, but in the paper, I concluded that in an American court today, the argument that educators shouldn't have to pay (ie their uses of others works in large-scale digital distributions to students should be fair use) if they can't afford it, isn't likely to be a winner. To read more than just the one section of the article referenced above, pull up the posts labeled copyright and that should retrieve them all (and a few other things no doubt).

I wonder whether, if such a claim succeeds in any forum, it is more likely to succeed in other fora. There would, in any event, still be considerable problems with it, as I suggest in the article. An interesting choice for Mr. Gates.

if:book: back to the backlist

What a great story, back to the backlist, over at Institute for the Future of the Book. This is so amazing, seeing such wonderful examples of how the pie can be envisioned as having more pieces and getting larger. I had read something similar on the front page of the Financial Times this morning (yes, I read a hard copy of it) about how over 1.3M Disney videos have been purchased from iTunes in the 3 months that they've been available, and how Disney is telling its retail partners (ie, those who sell DVDs) that overall consumption is up. Others are still trying to protect DVD sales, seeing it as a win-lose game. It isn't turning out that way in many cases.

Of the case for fair use: digital distribution of course materials: Conclusion

Conclusion

Back to Basics: The Underlying Assumptions Redux

It must be apparent from the range of approaches available to the courts, the range of fair use outcomes in the strictly iterative (non-transformational) cases, the closely divided nature of the decisions, the frequent and lengthy dissents, and the way courts tend to be reversed at successive stages of litigation, that fair use functions as a sort of Rorschach test, its outcome reflecting neatly the court’s underlying beliefs about how copyright law should be. Any given use can be characterized by a set of facts, and the court can emphasize among the many facts those that best support its underlying beliefs about whether a particular use should be fair.

This means, for example, that it is of little utility to argue among ourselves whether electronic reserve use of an article is a “transformative” use. It can be, if the court wants the use to be fair. It won’t be, if he court does not want the use to be fair. The task is not to convince the court that a use is transformative, it is to convince the court that it wants the use to be fair.

More generally, it is simply not enough to advocate a specific approach to the four factor analysis – one must first convince the court that a use should be fair, that the public needs to be able to freely make the particular use, or more broadly, freely benefit from the use, and that the social benefit of the use should prevail over the copyright owner’s need to control the use and derive revenue from it. In short, the court must affirmatively believe that enhancing public benefit and use is better than preserving actual or potential copyright owner revenues and control. If a court is so persuaded, the four factors will be made to follow. So persuading the court of the fundamental need for fair use in this context is the task for anyone among us who champions a blanket educational use exemption (the strict logic approach) or a finely nuanced financial hardship educational use exemption (the market dysfunction approach).

Thus, we can urge the use of a different framework from the one used by courts today to evaluate these types of uses, in order to expand fair use in educational contexts. We can explicitly ask courts to emphasize the public interest in our uses and to weigh that benefit against the harm to established markets. But unless we first convince the courts to turn the assumption that underlies the property theory of copyright generally, and market failure theory in particular, on its head -- that is, instead of assuming the owner is entitled to everything he can get, assume students and educators are entitled to freely use others’ works and that owners’ rights do not need any more protection than necessary to fund creation -- we would seem unlikely to prevail.

Is this an argument we are prepared to make? We might consider the consequences if we won: Asserting that all educators and students, or even a financially strapped subset of them, should be able freely to copy and distribute others’ works electronically could seriously undermine the financial support our own scholarly presses derive from permission fees, to say nothing of the financial support the broader community of publishers receives from educators who are in many cases their primary market.[1]

One might also ask as a practical matter, should we defend as fair use by enacting as policy that which we are unlikely to be able to defend in the courtroom? The Sony precedent and the good-faith fair use defense[2] may give universities enough comfort to take the risk, but will the evolution of publishing business models soon obviate the need for reliance on fair use in the Electronic Distribution context anyway?[3] More and more, licensing allows us to comprehensively acquire the rights to use others’ works that we know our faculty and students need. To the extent that licensing fails to meet educators’ needs as it clearly fails for books (few if any are available as aggregated licensed works), should universities instead insist that those who publish books, especially those intended for academic use, make them available in the form of licensed databases of aggregated content, as journal articles are made available today?

Several scholars note that iterative fair uses are important for other reasons besides merely multiplying and distributing copies. Where access to works is impaired by high prices (market dysfunction), many core fair uses (criticism, commentary, and other transformative uses) that might have been made will not be made.[4] Thus, the argument has been made that First Amendment concerns permeate even iterative copying, and that fair use should take account of that fact in the iterative context. But to the extent that this argument can be characterized as a specific example of a dysfunctional market, that is, the price for access is too high, therefore financially strapped users will not gain access, the argument will be vigorously challenged in any court adhering to market failure principles. Ultimately then, although iterative copying may indirectly support First Amendment values, arguments in favor of characterizing it as a fair use on First Amendment grounds will still have to succeed before a court likely to focus only on the iterative event, not the speculative later end result of a possible second transformative, perhaps critical, use.

Distinguishing Core Fair Uses from Iterative Uses

We are now back to where we started: will reduction in the scope of iterative fair use affect the case for core, creative, transformative fair use -- fair use for commentary, criticism, news reporting, parody, artistic expression, scholarship and research? Can core fair uses survive the property premise, that copyright owners are entitled to every cent they can get, with fair use an onerous tax on their revenues? Can they survive if courts forget that a monopoly is not a good thing and that the monopoly, rather than fair use, should be limited to the extent it is needed to achieve a socially beneficial goal that can not be achieved through less drastic means?

Of course, the ultimate fear is that fair uses of every type can be eliminated once it is clearly established that copyright owners are entitled to control any use they are able to charge for. By the mere expedient of raising a price above what a user is willing or able to pay, a copyright owner can discourage or prevent uses he does not like for whatever reason.[5] Who will be able to effectively question whether his reason is that he needs the money to further his creative efforts or that he dislikes the expression contained in a derivative work? Even if unintentional, the result will be the same: fewer, not more, works will be created. Wendy Gordon suggests that even under market failure analysis, uses refused for non-economic reasons should be permitted as fair, although she looks to tort law principles to narrowly draw the limits of the exception.[6] Perhaps it is necessary to look to bodies of law outside copyright to justify fair uses that fully comply with the fair use statute and clearly promote the progress of knowledge where courts have been persuaded to abandon those copyright principles in the first place, in favor of microeconomic analysis with its premise that copyright owners’ rights should be interpreted expansively. If those rights were interpreted as the monopoly they are, fair users might not be disproportionately burdened with the obligation to “justify and excuse” themselves.

Nevertheless, courts have shown more support for core fair uses and conversely, more resistance to the claims of copyright owners in this area.[7] For example, in Bill Graham Archives,[8] the court found that including seven small images of concert posters in a book detailing the phenomenon of the Grateful Dead was a transformative fair use even though the plaintiff copyright owner was willing to license the use and the alleged infringer had paid many other copyright owners for the use of other images included in the Grateful Dead book. The court distinguishes clearly between iterative and transformative uses in its fourth factor analysis. It flatly rejects the idea that one can control transformative uses by offering to charge for them. This holding is very encouraging, especially coming as it does from the Second Circuit, home to the publishing industry. Also encouraging, the Kelly and Field cases discussed supra at footnote xx found that even iterative copying was fair use where it was also transformative in nature and no harm to markets for the originals could be shown.[9] On the other hand, we have precedent in the Sixth Circuit in a case analyzing transformative uses of music (a three-second sample) that is directly at odds with the Second Circuit’s approach.[10]

Additionally, on some occasions when courts have acquiesced to copyright owners’ demands in the creative use context, Congress has stepped in to defend core fair uses such as historical commentary and criticism.[11] Recall also the considerable number of scholars cited at the outset of this article who vigorously defend the fundamental need to protect core fair uses. Unless scholars like Julie Cohen and Rebecca Tushnet are able to change the general perception that iterative copying does not need the protection of the law, the mere possibility of collateral damage to transformative uses is not likely to dissuade courts from concluding that iterative uses are not fair.

The Task for the Educational Community

That copyright owners can defeat particular iterative fair use claims by licensing the use appears to firmly hold sway over courts today. Thus, where markets are reasonably able, even if imperfectly able, to meet educators’ needs for authorized copies of articles and book chapters for their students’ use, courts are unlikely to step in, interfere in the functioning of those markets, and declare unauthorized uses to be fair.[12] I conclude in the face of this trend that universities will find it difficult to prevail on a claim that Electronic Distribution of easily licensable materials is fair use in all cases. Perhaps one may still effectively argue that some such iterative uses are fair, such as those involving occasional use, actual spontaneous use, or more broadly, a first time use, but near-instant permission processes and the real possibility of blanket licenses covering such uses available through the CCC would seem to undermine that argument as well.

On the other hand, it appears that clearly transformative uses cross a dividing line between unfair and fair. With respect to some media at least, there continues to be good precedent indicating that copyright owners cannot control creative uses of modest scope by refusing to permit them, or even by offering to charge for them.[13] Certainly where it is not practically feasible to charge for them, where the market for such uses simply does not and probably cannot exist, fair use prevails even for iterative uses.[14]

If this assessment is accurate, fair use still may safeguard core uses, but if the evolution of copyright law through the twentieth century has taught us anything, it is that fair use in any form will survive only if it has very strong, informed and active advocates. The publishing and entertainment industries can certainly be characterized as having on more than one occasion evidenced a myopic view of their own best interests.[15] But their view will prevail, whether ultimately good for them or not, unless it is countered forcefully and effectively.

---

[1] Textbooks obviously come to mind, but even major journal publishers may count educational markets among their most important.

[2] 17 U.S.C. 504(c)(2)(i). This defense requires the court to remit damages in any case in which the nonprofit educational or library defendant or its employee proves that it reasonably believed that its actions constituted fair use.

[3] Further, publishers’ employment of digital rights management may further moot this whole discussion insofar as it enables unilateral determination of the rights that users enjoy. Fair use is not likely to be among those rights, or if it is, it may only be a rough, algorithmic, no doubt conservative approximation.

[4] For example, Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It, Rebecca Tushnet 114 Yale L. J. 535; The Place of the User in Copyright Law, Julie E. Cohen 74 Fordham L. Rev. 347 (2005).

[5] The recent declaratory judgment action involving the treatment by James Joyce’s estate of scholars’ requests to use materials in research on the author is illustrative. [cite.]

[6] Wendy J. Gordon, Excuse and Justification in the Law of Fair Use: Commodification and Market Perspectives, The Commodification of Information: Social, Political, and Cultural Ramifications, Klewer International 2002; criticized in Lunney’s Fair Use and Market Failure.

[7] Campbell v. Acuff-Rose Music, Inc.; Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2^d Cir. 2006); Sun Trust Bank v. Houghton Mifflin Co.; New Era Publications Int’l v. Carol Publishing Group, 904 F.2d 152 (2^d Cir. 1990); Nuñez v. Caribbean International News Corp. (El Vocero de Puerto Rico), 235 F.3d 18 (1^st Cir. 2000); cf. Harper & Row, Publishers v. Nation Enterprises, 471 U.S. 539 (1985).

[8] Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 605 (2^d Cir. 2006).

[9] Kelly v. Arriba Soft; Field v. Google. These were also, however, cases where requiring the defendants to take a license, that is, ruling that their uses were not fair, would have been impractical as there is no way such a license could be implemented in the framework of Internet search engine functioning. There was, in other words, a massive market failure *and* a transformative use. Digital Distribution can not easily claim either. Both of these cases appear to confirm the hypothesis that if a court wants to find a use fair, it will, and the four factors can be made to follow.

[10] Bridgeport (criticized). It may be that courts may justifiably take different approaches to this issue depending on the sector of the content industry involved (suggested by Bill McGevern in discussions May, 2006). The sector-specific “best practices” that seem to be developing in response to over-aggressive permissioning of every inclusion, no matter how small, would support the view that there are different standards from sector to sector. Documentary film makers are taking concrete steps towards stronger recognition of fair use rights (cite to Best Practices) while the music industry does not appear to even contemplate such moves.

[11] New Era Publications Int’l ApS v. Henry Holt & Co., 873 F.2d 576 (2d. Cir. 1989), cert denied, 493 U.S. 1094 (1990); Salinger v. Random House, Inc., 811 F.2d 90 (2d Cir.), cert denied, 484 U.S. 890 (1987); followed in 1992 by an amendment to 17 U.S.C. 107 to clarify that the unpublished nature of a copyrighted work does not bar a finding of fair use.

[12] This “stepping in and interfering” in the market is precisely what we must urge that courts do if we are to argue that all or some part of Electronic Distribution is fair use.

[13] Suntrust; Bill Graham Archive.

[14] Kelly v. Arriba Soft; Field v. Google; Perfect 10 v. Google (RAM copy).

[15] L. Ray Patterson, What’s Wrong with Eldred? An Essay on Copyright Jurisprudence, 10 J. Intell. Prop. L. 345.

Of the case for fair use: digital distribution of course materials: summary of approaches to fair use

Summary of Approaches to Fair Use Analysis

We have discussed five approaches to fair use analysis. It is my conclusion that even the most lenient approach will offer little support for fair use Electronic Distribution in today's courtrooms.

1. Strict logical construction: in this case the court would accept as fair use those uses where the first three factors favored fair use in the nonprofit educational context, ignoring all evidence of harm to markets as logically irrelevant insofar as it represents payments that are not due if a use is fair, and so cannot be presumed “lost” because of the use unless it is otherwise determined to be unfair. Williams & Wilkins illustrates this approach.

2. Creative destruction: in this case the court would accept as fair use those uses where the consumers of copyrighted works are funding the making and distribution of the copies in question, and creation of the works in question does not depend on sales of copies.

3. Sony traditional revenues only: in this case, the court would accept as fair use only those uses that provide a clear social benefit, and when weighing the social benefit against the harms to the copyright owner, the court would limit the relevant market to current revenue streams.

4. Market dysfunction (broad interpretation of market failure): in this case the court would accept as fair use those uses that demonstrate market failure due to high transaction costs or market dysfunction due to inability to pay – inability to internalize social benefits or monetize a party’s interests; the relevant market would be both current and future revenue streams that might exist if the court finds for the copyright owners. No court has taken this approach.

5. Strict interpretation market failure: in this case, the court would accept as fair use only those uses that demonstrate near total and likely continuing failure of the market due to high transaction costs; the relevant market would be both current and future revenues that might exist if the court finds for the copyright owners. Texaco illustrates this approach where the use was not found to be fair; more recent cases involving Internet search engines (Kelly v. Arriba Soft & Google v. Field) illustrate this approach where the use was found to be fair.

Sony and creative destruction both offer fairly aggressive arguments for fair use. Creative destruction would even legitimize unauthorized peer-to-peer (p2p) music file sharing. In fact, that is exactly what Ku argues: that p2p file sharing has creatively destroyed the market for CD distribution because individuals make their own copies and pay for the distribution network themselves (computers, peripherals, ISP service).[1] Further, sales of copies are in fact notoriously not a source of income for most musicians.[2] One can also identify this phenomenon at work much earlier with respect to sheet music and the advent of photocopying. So, for example, a court using this analysis could find under the fourth factor that p2p file sharing of music does not harm the market for or value of copyrighted recordings.[3]

Ku assumed that courts were more likely to implement creative destruction than the legislature would be to reform copyright law by placing a limit embodying this theory on copyright owners’ exclusive rights. Recent cases involving p2p issues would cast considerable doubt on this likelihood, however, because all have assumed that direct copying by p2p software users is infringing, including the Supreme Court in the recent case of MGM Studios, Inc. v. Grokster, Ltd.[4]

Moreover, it seems unlikely that Electronic Distribution would qualify broadly as fair under creative destruction analysis. Creative destruction characterizes as fair those uses 1) where the user makes his own copies and pays for the distribution system, and 2) where revenues from the sale of copies is not required to fund the creation of the works the user copies. That description does not currently characterize all of the materials that educators must use in teaching. Scholarly articles arguably fit the description, though there would no doubt be argument to the contrary. Textbook and trade book publishers would vigorously refute the characterization.

Perhaps the market dysfunction argument, creatively and thoughtfully applied, is at least a possibility, but as indicated earlier, its advocates would have to define the subtle contours of a very challenging argument.

Finally, the circularity argument will likely fail, as indicated above, because it can so easily be gotten around by manipulating the first three factors to favor getting permission, thus eliminating the appearance of “… converting an otherwise fair use into an infringing one.”

If posting articles or book chapters for students to read over successive semesters would likely fail to qualify as fair use under every theory of fair use including the “strict logic” circularity approach to the fourth factor, how do we reasonably defend it? And what are the implications of such a likely failure for fair use policy? In general, how do we defend policies that describe a scope for fair use significantly beyond its likely interpretation in courts today?

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[1] Shih Ray Ku, Consumers and creative destruction, 565 - 566.

[2] Ku, p. 567.

[3] Id.

[4] MGM Studios, Inc. v. Grokster, Ltd., ___ U.S. ___ (2005). See also, Napster and Aimster, cited elsewhere within.