Old friends...

Time it was and what a time it was, it was...
A time of innocence
A time of confidences

Long ago it must be; I have a photograph
Preserve your memories
They're all that's left you

-- Simon & Garfunkle, Old Friends

Dana answered an ad I had placed in the Austin American Statesman, for a roommate. I had just graduated from UT and she was still in her junior year. She said she answered the ad because I was a vegetarian. She had an Irish Setter named Mandy. I had 3 cats. We all got along just fine, though I remember our first big fight. She locked herself in her room and wouldn't talk to me. I told her through the door that if we didn't work this out we were giving up on our friendship. We didn't give up.

Dana never gives up.

Dana has been living with ALS for 2 1/2 years. This weekend she must decide for herself and her family and her friends whether to let go of her life or whether to commit to living with life-support 24 hours a day for the rest of her life, whatever that might be.

Can you imagine us years from today
Sharing a park bench quietly
How terribly strange to be seventy

Old friends
Memory touches the same years
Silently sharing the same fears

Seventy doesn't seem so terribly strange anymore, but those fears -- we are still silently sharing those. Dana doesn't talk about that. At times it takes such incredible courage to live with unbearable pain, loss, and sadness. It takes no less an amount of courage to let go.

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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Rogers, I. (2007, October). Convenience Wins, Hubris Loses and Content vs. Context, a Presentation for Some Music Industry Friends . Fistfulayen. Retrieved April 6, 2008, from http://www.fistfulayen.com/blog/?p=127.

Safe Harbor Provisions for the Use of Orphan Works (Ver. 1.1). (2007, November). STM Association. Retrieved March 31, 2008, from http://www.stm-assoc.org/documents-statements-public-co/2007-documents-statements-public-correspondence/.

Sanger, D. (2006, February 22). Orphan Works IPA Analysis | David Sanger Photography. David Sanger Photography. Retrieved March 31, 2008, from http://www.davidsanger.com/copyright/orphan-works-ipa-analysis.

Shampinier, K., Mazar, N., & Ariely, D. (2008, March 3). Zero as a Special Price: The True Value of Free Products. Docuticker. Retrieved March 12, 2008, from http://www.docuticker.com/?p=19620.

Stallman, R. The Free Software Definition. GNU Operating System. Retrieved April 6, 2008, from http://www.gnu.org/philosophy/free-sw.html.

The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses. Retrieved March 3, 2008, from file:///Users/gharper/Library/Application%20Support/Firefox/Profiles/qqwfvbgi.default/zotero/storage/4945/kim.html.

Vaidhyanathan, S. (2001). Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York University Press.

Yoo, C. (2007, Spring). Copyright and Public Good Economics: A Misunderstood Relation. sScholarship Repository, Berkeley, CA. Retrieved April 10, 2008, from http://repositories.cdlib.org/berkeley_law_econ/Spring2007a/6/.

Dissertation proto-proposal stage two: The work plan

I have moved my dissertation proposal along to a second stage. I have submitted it to my committee and to some copyright colleagues for comment as a work plan. Here's the gist of it:

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

The copyright pendulum had been swinging towards broader, stronger and longer protection for the last 100 years, but it may have reached a turning point in the U.S. with the draconian 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.

Of course, copyright would not go quietly into the night because the industries built upon it resisted the inevitable and took time to adapt to their new circumstances. But adapt they did. The series of ironies that followed the subsequent swings were only delicious for a moment, as the implications of the next swing back the other way would become apparent. Victors learned not to celebrate, for in the next instant, things would go against them.

Or so it seemed to me at first as I began to examine the hard question of 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, in particular, effects on the health of the public domain. Major concepts I expected to examine, in addition to the effects of mass digitization, both commercial and nonprofit, included the deterioration of library prominence in the roles of discovery and fulfillment, the crumbling of business models in the music industry, seeming recalcitrance in the publishing industry and arrogance in the movie industry, all interwoven with economic themes elaborated by Schumpeter, Christensen, Goldstein, Anderson and Boyle, among others.

While the surface story appears to be one of increasing access to and usefulness of the kinds of media that once were scarce goods, such scarcity owing to copyright’s artifice, the deeper story is one of ever more adroit exploitation and control by copyright owners. In fact, the surface story was so appealing that it took me awhile to recognize that there was a deeper story. On the surface, I surmised 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 individuals rely less on copyright to exclude others from copying and distributing their works, that is, if relatively free access to and use of such content becomes a normal public expectation, there may not be any 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 this apparent access and use utopia, we would have those nine years to figure it out and be prepared with counterarguments. The counterarguments could go so far as complete denial of any continuing use for copyright (a fitting final twist in the story, I thought). But even if that were unlikely, the full range of arguments against term extension in a milieu of much freer access to and use of others’ works warranted exploration.

I really do not know who will get the last laugh, but as I looked at the situation more closely, it began to seem that the power and control that the collective content industries wield will not be turned to the liberation of their content from their own grasp. It only seems like they are giving up control. In truth, they appear to be asserting control in more subtle and nuanced ways, and in ways that are possibly more constraining than we can imagine. 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 creative content will, in reality, effectively deflect criticism of attempts to extend the broad, powerful and lengthy protection copyright offers now to new lengths, and possibly even new breadths and depths. So, starting with the present, we are only on the cusp of some of the changes that I think will bring into play the forces that will radically reconfigure the “balance” we think copyright is supposed to achieve.

[NOTE: Following are rough notes that outline the trajectory from easy access and use for consumers and nonprofit creators to easy claims for longer terms. I question whether a massive corpus of freely available works will act as a sufficient counterbalance of choice as the control of copyright owners over commercial exploitation of profitable works approaches endlessness. The emerging structure I imagine is in some ways reminiscent of the earlier US copyright regime that only provided protection for works that promised some profitability, and only those that were really profitable enjoyed a longer term 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 future configuration, the division of works into those protected and those not protected 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.]

If selling, distributing, displaying and performing digital copies as a business model is losing traction as a result of disintermediation, consumer resistance to copy controls, and forced competition for consumer's attention with enormous amounts of free materials, among other forces,

as evidenced by proliferation of business models that do not rely on control over and sales of copies (music biz abandonment of DRM, OA movement, growth of CC content, Internet TV ad supported, Pandora/LastFM, massive amounts of freely available content (where author does not rely on copyright to make a living), examples of alternative business models from Kevin Kelly’s article Better than free and Chris Anderson’s Free,

and

If the price of digital content to the consumer is, as a result, trending lower, even towards zero,

as evidenced by examples of free content and market forces pushing content prices to zero (any mechanism that would allow for market pricing of content will tend to push prices to zero because or competition with so much content already priced at zero); examples of content that used to sell for a price but is now free (NYT/WSJ; software); proposals to embed the cost of content in non-digital goods and services (subscription; increased prices for electronics, etc.); and the massive amounts of free and very valuable information individuals, cultural organizations, and other entities post

and,

If copyright owners voluntarily refrain from enforcement of the digital "copy" right functionally (de facto) weakening it so that the strength of digital copyright trends lower, even to zero in the case of the copyright in digital copies,

specifically, the 2015 de facto digital copyright will have lost much of its strength through non-enforcement:
1. [exclusive right to make and authorize others to make copies]
2. exclusive right to create and authorize derivative works ? – see below
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]

Then, 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?

With a copyright that is significantly de facto weakened (at least along one parameter – digital embodiments), 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. The public domain only has value in contradistinction to the protected domain. As the protected domain diminishes in scope, the value of the public domain should diminish too.

Where will the value of 1) digital and 2) non-digital copyright lie 9 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 exploitation of derivatives (ex post investment) that is, uses that derive monetary value from use of or association with digital embodiments;

Non-digital (analog): 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)

so

Proponents of a vibrant public domain would have to 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, keeping in mind that ex post investment as a justification for longer terms has no theoretical stopping point (i.e. if I should have the right to control exploitation of my work, what is the rationale for this right to ever end? – think of Landes and Posner’s indefinitely renewable copyrights as one model for what proponents of longer terms might argue).

Regarding the questionable value (strength or value of enforcement) of the right to create digital derivatives: Will digital derivatives have any intrinsic value? Will they have any more value than the digital originals from which they are derived? Paul Heald counters the argument that the copyright owner should control investment in his work to increase use of older works (ie, the derivative right) by showing that investment actually increases upon release to pd, but his study was conducted under conditions of significant transaction costs while a work is protected. These will likely diminish or possibly even disappear entirely in the future (combination of strong use of Creative Commons and other online licensing and solutions to orphan works problems, as well as development of functional ways to identify and pay creators to use their works (copyright evidence bases) and particularly with respect to the massive corpus that is born digital and can either explicitly or implicitly be freely used and reused or whose owners are easier to contact for exploitation rights). Thus, the average economic life of a creative work would theoretically lengthen with increased access and reduced transaction costs. But digital derivatives will face the same pressures as their source materials – competition with immense amounts of free materials, which would seem to drive derivative prices toward zero also.

If copyright terms continue to be extended, they will mainly affect (bind) popular cultural works, making them unavailable for commercial exploitation without a license. Disney will argue that he should be able to control commercial uses of Mickey so long as Mickey makes money, especially in light of all the free content Disney (by then) will be providing the public. Authors who see their newly discoverable older works potentially able to earn them payments for the entire life of the copyright (even if this proves illusory given the push 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 these days. “I should be able to control making money from my investment of time and effort in creating my property...” The counter argument will simply be that there must be a stopping point ( and WHY is that? Oh, yes, that Constitutional thing… surely we don’t really need to worry about that, do we?) and that 95 years is long enough (too long actually, but that’s another battle). That does not sound like a strong argument, at least not to me (Eldred v. Ashcroft).

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 inputs that cost and inputs that are free, is that all that we can ask for in a market economy? One might ask the same question with respect to consumption: if you have equal choices with respect to quality, and you want to pay for something, even if you have to pay for it forever (ie, it never becomes pd), should that be your choice? Copyright owners could argue in these terms, given the massive public benefit of an enormous corpus of freely available, non-commercially exploitable materials.

And for a final twist on a tale of irrelevance, initially of the public domain, but possibly of copyright itself: 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 copyright becomes less and less a functional incentive to create and more based on controlling ex post investment forever (minus a day, or course), is there really a utilitarian justification for copyright at all? If you compare physical building materials (manufactured and sold to the public) to intellectual building materials, where is the justification for the government granted monopoly if in fact recovery of investment is not at all problematic because it is not based on control over the sale of copies, but instead, derives from selling other goods and services besides the work itself? If others can earn a living from exploitation of my creative works without negatively affecting my ability to make money from them, and perhaps even enhancing my ability to make money from them (for example, the Brazilian musicians who allow 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, 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 my book right alongside me? Recall Vaidhyanathan’s examples of musicians whose particular nuances are what make their live performances unique and attractive. Given available alternatives to recover investment without preventing duplication, distribution and even public live performance, where is the justification for invoking a state-granted monopoly?

Consider the creator of 2x4s. She does not have an exclusive right to control downstream investment in the products of her labor. Anyone can buy her 2x4s outright and use them to build a house and make a profit. The 2x4 creator recovers her investment up front, by selling to the distributor or to the public at a price that keeps her in business. Will there be any functional difference between this business model and the content owner’s sale, up front, of other goods or services that creators of content will sell, instead of copies, to recover their investments? Do they really need a monopoly on ex post investment at all? Their justification is much more understandable when based on natural rights. I think it falls flat on utilitarian grounds once ubiquitous copies, costless distribution of digital copies and recovery of investment from other sources besides sales of copies are the norm.

One can view the economics of these phenomena through the “innovator’s dilemma” lens (Christensen, 1997): economic forces that normally operate in the presence of technological opportunities to reduce costs and provide better services or goods are kept at bay by imposition of a limited monopoly vested in those who benefit from current business models. Creative destruction does not operate within copyright industries the way it does in industries where the entrenched interests cannot prevent startups from using new technologies to explore new markets (note that Christensen does not discuss copyright industries). In copyright industries, monopolists are able to control 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 demand for “respect” for copyrights (ie, imposition of monopoly rights to stop what would otherwise be normal economic development processes) forces innovators to either increase their costs by licensing rights from copyright owners (if the owners want to enable their competition) or wait for the development of a corpus of alternative source materials, to be able to experiment with new business models 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 may possibly undermine entities that cannot adapt.

As an aside, contrast that play of interests where there is a monopoly involved with the ease with which Google has swept past its library competition by being able to innovate in the areas of information discovery, retrieval, and eventually, fulfillment, because it had a huge corpus of freely available and usable content right from the beginning (i.e. copyrights were never successfully interposed against search engines until Book Search). Libraries have not been able to block innovation in their core business, because they have no monopoly to assert and they cannot, by their nature, respond quickly or creatively, as a well-financed startup can.

There are a number of research questions that I could pursue within this framework of propositions. While the health of the public domain and access to and use of others’ works for creative and consumptive uses is, in general, relevant to the field of information studies, the theories underlying the questions that occur to me at this point are economic. I welcome any suggestions for alternative questions that might explore theories more directly affecting the field of information studies.

Research questions

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 monetize 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 there a relationship between easily and freely available copyrighted source materials, for inclusion in new creative works and for use as the basis for derivatives, and the value creators place on public domain materials for the same types of use and reuse?

a. Conduct an experiment in which participants are offered a financial incentive to create a short (approx. xx words) travel article for an online travel Website, incorporating materials found on the Web, where the experimental conditions offer different combinations of custom search engines from which to choose works to incorporate into the article (images, video, descriptions of important locations to visit, travelogs, etc.):
i. Condition 1: Creative Commons search engine and Public Domain search engine
ii. Condition 2: Stock photos and commercial travel sites search engine (where copyright owners impose permission and fee barriers to the use or reuse of creative works) and Public Domain search engine
iii. Condition 3: Open Web search engine (where creator is likely to encounter a broad mix of open access and toll access materials, and ambiguity about rights to use and reuse) and Public Domain search engine (does open Web constitute a valid control group; if not, what would be a valid control group?)
iv. Incentive could be $50 to be paid if the article is “chosen” for the travel Website (i.e., the best article from those submitted by participants)
v. Participants evidence the value they place on the Public Domain by their choice to use or not use the Public Domain search engines to find and incorporate materials into their creative works

3. What is the effect on public willingness to pay for digital content when content of similar quality is readily available for free?

a. Conduct an experiment in which a searchable online repository of electronic theses and dissertations (etds) offers a random selection of etds for free and a random selection for a fee (the groups will be equal in number), to see what effect the price condition has on downloads of the etds.
i. Etds are randomly offered at three different price conditions
1. Condition 1: etds are free
2. Condition 2: etds cost $5
3. Condition 3: etds cost $30
ii. Log records are maintained for 3 months showing all searches and all downloads.
iii. Download rates are examined to determine whether price, and specifically, whether zero price, affects downloads.

Working Bibliography

Adilov, N., & Waldman, M. (2008, February 16). Optimal copyright length and ex post investment: A Mickey Mouse approach. Retrieved from http://mpra.ub.uni-muenchen.de/1551/1/MPRA_paper_1551.pdf.

Boyle, J. (2003). The second enclosure movement and the construction of the public domain, Law and Contemporary Problems, 66(Winter/Spring), 33-75.

Boyle, J. (1997). Shamans, software and spleens : Law and the construction of the information society, 288. Harvard University Press.

Campbell, D., & Picciotto, S. (2008, February 16). The acceptable face of intervention: Intellectual property in Posnerian law and economics. Retrieved from http://eprints.lancs.ac.uk/262/1/Acceptable_Face_-_sub.pdf.

Christensen, C. (1997). The innovator's dilemma. Cambridge, MA: Harvard Business School Press.

Game theory - Wikipedia, the free encyclopedia., Wikipedia. Retrieved February 29, 2008, from http://en.wikipedia.org/wiki/Game_theory.

Goldstein, P. (2003). Copyright's highway: From Gutenberg to the celestial jukebox (Revised), 256. Stanford Law School.

Heald, P. J. (2007). Property rights and the efficient exploitation of copyrighted works: An empirical analysis of the public domain and copyrighted fiction best sellers. Retrieved from http://ssrn.com/paper=955954.

Jasco, P. Google scholar revisited. Retrieved March 10, 2008, from http://www.emeraldinsight.com.ezproxy.lib.utexas.edu/Insight/viewContentItem.do?contentType=Article&contentId=1711361.

Kelly, K. (2008, January 31). Better than free, Kevin Kelly -- The Technium. Retrieved March 15, 2008, from http://www.kk.org/thetechnium/archives/2008/01/better_than_fre.php.

Kim, Minjeong. (2007). The creative commons and copyright protection in the digital era: uses of creative commons licenses, Journal of Computer-Mediated Communication. Retrieved March 2, 2008, from http://jcmc.indiana.edu/vol13/issue1/kim.html.

Landes, W. M., & Posner, R. A. (1989). An economic analysis of copyright law, The Journal of Legal Studies, 18(2), 325-363.

Landes, W. M., & Posner, R. A. (2008, February 16). Indefinitely renewable copyright. Retrieved from http://ssrn.com/paper=319321.

Lemley, M. A. (2008a, February 17). Ex ante versus ex post justifications for intellectual property. Retrieved from http://ssrn.com/paper=494424.

Lemley, M. A. (2008b, February 17). Property, intellectual property and free riding. Retrieved from http://ssrn.com/paper=582602.

Lessig, L. (2001). The future of ideas: the fate of the commons in a connected world (1), 368. Random House. Retrieved from http://www.the-future-of-ideas.com/.

Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity, 345. New York: Penguin Press.

Lessig, L. (2006). Code (Version 2.0), 410. New York: Basic Books.

Liebowitz, S. J., & Watt, R. (2006). How to best insure remuneration for creators in the market for music? Copyright and its alternatives, Journal of Economic Surveys, 20(4), 513-545. doi: doi:10.1111/j.1467-6419.2006.00259.x.

Litman, J. (2006). Digital copyright, 216. Amherst, N.Y: Prometheus Books.

Pollock, R. (2008, February 16). Forever minus a day? Some theory and empirics of optimal copyright. Retrieved from http://hdl.handle.net/2451/23898.

Posner, R. (2002). The law and economics of intellectual property, Daedalus: Journal of the American Academy of Arts and Sciences, 5(1), 5-12.

Shampinier, K., Mazar, N., & Ariely, D. (2008, March 3). Zero as a special price: The true value of free products, Docuticker. Retrieved March 12, 2008, from http://www.docuticker.com/?p=19620.

Vaidhyanathan, S. (2001). Copyrights and copywrongs: The rise of intellectual property and how it threatens creativity, 243. New York: New York University Press.

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.

So how did that balance thing work out?

Here it is, 2 months into 2008 and this is to be the year I figure out balance. Much to my utter astonishment, I am leading a really nicely balanced life this semester. I can't take all the credit, but I can take some. Here's the story.

My three courses, the normal grad school load, do not insist on insane amounts of reading and writing. There's plenty of reading so far, but not too much. I have time for it, plus time to think about it and talk with people about it and relate it to other things. Much more like what I really want a grad school experience to include. All three are interesting, and I'm having fun with my ethnography fieldwork, and I'm able to spend plenty of time contemplating my dissertation topic and have several opportunities to get feedback on my ideas. It seems easy this semester.

But that's just part of it. The other part is that I make deliberate choices each day to do other things that don't relate to school. I've been (knock on wood) regularly exercising in the mornings before I get going on other things, reviewing French (watching French in Action episodes), taking breaks and meals in the garden, visiting with friends (lunches, coffee, drinks after work), doing a bit of backyard birding (I have a pretty unusual backyard with a high cliff overlooking a creek, and a lot of interesting birds wander into visual and auditory range), spending time with my mom. In short, I've been doing things that make life rich and rewarding and studying is a part of that, but not all of it.

And then there's work. That is limited to 10 hours a week, and it's well-correlated with my studies. Admittedly, it runs over an hour or so from time to time. But it does not, cannot, get out of hand because I just can't give it any more time than that, and I don't.

It makes me think that maybe this was within the realm of the possible all along but I sure didn't feel that way in any year up until this one. I think it mostly comes down to not having that one thing that, of its nature, pushes everything else to the margins. That's really the secret, and I just have always had that thing that took too much, or to which I gave too much. Either way, it was never balanced, and this year it is.

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.

Dissertation proto-proposal: the scholarly mongraph interface

I am imagining this scholarly monograph as a layered kind of thing. I guess I'll use the tabs metaphor for the moment, though that's sort of old. But, for now, the tabs on my interface, which interface I imagine (at this time) would be resident on servers within a discipline environment or an institutional environment (TDL, for example):

1. Project Title page, DOI, other metadata

2. TOC fully hyperlinked

3. text in a format optimized for straight reading

4. html text fully hyperlinked

5. a blog for the project (pre and post publication)

6. bookmarks page with feeds (del.icio.us; blog reader) for all web resources

7. pre-publication peer-review/imprimatur page (info and links to the publisher, if any, and info about peer-review)

8. post-publication commentary and discussion (commentpress version)

9. Bibliography/references, printable

10. Bibliography/references, fully hyperlinked

11. Search page with log of all searches (anonymous)

12. Non-text media arrays or versions (images, sound, video, visualizations)

13. Databases or raw data that underpins the research results

14. POD tab/links to booksellers, if appropriate

Could this be constructed in a blog, with the tabs to static pages being links to pages in the blog, and those not amenable to formatting within the blog linking to free-standing pages in a related or remote directory (for example, the non-text media, the databases or raw data, links to visualization software, etc.)? What about a wiki like the ACRL Scholarly Communications Research Agenda?

What is the experiment? What is the research about? Given the needs defined in studies a, b and c, an interface for presenting research with features x, y and z should meet scholar's and their audiences' needs. How to test that? Just create it, showing how it is responsive to the needs culled from the earlier studies, and then convince a press/library collaborative to offer it as a format for research reporting in the social sciences. I will, of course, report the entire experiment using the format (assuming I can get TDL to host it for me).

So, I am integrating some of Lisa Spiro's observations, particularly, numbers 7 and 8 (http://digitalscholarship.wordpress.com/2007/11/22/doing-digital-scholarship/). And I am pursuing some of the objectives noted by the ACRL, specifically, Theme 4 about authoring tools: Research and develop authoring tools, publishing templates and open source software packages for scholarly discourse, teaching and publishing. Examine the feasibility and characteristics of registries of such tools.

I also can incorporate into the studies that I consider as sources for the design ideas, the study the Danielle mentioned the other day in response to a blog post: Modern Language Association's Task Force report on Evaluating Scholarship for Tenure and Promotion

This task force report executive summary is at: http://www.mla.org/pdf/tenure_summary.pdf

My project would be responsive to two of its recommenations:

3. The profession as a whole should develop a more capacious conception of scholarship by rethinking the dominance of the monograph, promoting the scholarly essay, establishing multiple pathways to tenure, and using scholarly portfolios.

4. Departments and institutions should recognize the legitimacy of scholarship produced in new media, whether by individuals or in collaboration, and create procedures for evaluating these forms of scholarship.

And there's Kathleen Fitzpatrick's New (Social) Structures for New (Networked) Texts: http://quod.lib.umich.edu/cgi/t/text/text-idx?c=jep;view=text;rgn=main;idno=3336451.0010.305

I need to reread this for its insights. I read and referred to it in my blogs article, but that was a very limited aspect of it. She also has an article at http://mediacommons.futureofthebook.org/scholarlypublishing/, about the evolution of MediaCommons and its responsiveness to the MLA report.

And finally, copyright. The hypothesis that copyright becomes less important and authors are happy with attribution alone, is an integral part. We absolutely MUST get past DRM. The work has to be open access. That means I can't really avoid the issue of how to fund the dissemination. If no exercise of the copyright monopoly, then funding has to come upfront, not from sales of copies. But what about the POD and bookseller sales? But even those would not be accomplished by virtue of an exclusive right, only a non-exclusive right to provide a service, a printing service. Imprimatur and peer-review would have to be paid for up front. So would hosting and software (maybe these are the same costs). So even if a copyright subsists, its function has changed. It is no longer about excluding others from making or distributing copies. It is mainly about right to perform subsidiary functions for a fee to be paid by the recipient of the service, right to attribution. Rights to create derivatives would be abandoned. Right to prevent copying, distribution, even performance, would all be dedicated to the pd. A very different copyright, a much reduced copyright, in scope. What about length of the term? This is harder to predict. Many people may be willing to give it all up at a period of 14 years, or 28 years. Maybe life of the author. Maybe life + 10 years. But really, that should be negotiable, just like the CC license scope is negotiable. But we need to start having the conversation about what is a reasonable term, in light of Pollock's article that 14 years is optimal. What does it mean to have an optimal or suboptimal term? Personally?

I started doing some research in the Libraries' databases on "interface scholarly monograph" and turned up nada. I talked to Randolph and he suggested I look for stuff on how people are using e-book readers or using e-texts more generally, not just scholarly monographs, but e-books. I had looked at that earlier but was pretty disappointed in it. It seemed like straight translation of books into digital form. No imagination, no exploitation of the medium, no thoughtfulness whatsoever. But I'll look again. There is that fiction project from if:book. I should revisit that.

I do need to get this written up fairly quickly though. I told my committee I was going to draft my work proposal and I've completely ignored it. I need to schedule it or it won't get done. Done.

I wonder if I did a video version of an ethnography, say, of the UT Press, if I could fit it into the final story. Does the dissertation have a place in it for an ethnography of the UT Press, maybe in a video? A whole 'nother interpretation of this little piece of things? Not a story told in prose, but the story told in film. I thought of the ethnography as just helping me to understand the Press world better, but maybe there's a place for the ethnography in the finished product. Since I have all those tabs, it seems like the ethnography can be fitted in even if it's not integral. Maybe that's one of the good things about the tabbed approach. It lends itself to relationships.