I have to admit I’m biased in favor of Google. I have friends who work in both the Cambridge and Mountain View offices. I’ve tried, and provided feedback on, every beta Google has produced. I worked for a group trying to get funding from its philanthropic arm, Google.org. And every time I hear CEO Eric Schmidt speak at a conference, he strikes me as one of the most intelligent, well-versed, sober, geektastic corporate leaders I can think of. (If you have an hour, this interview with the New Yorker’s Ken Auletta is definitely worth watching:
So perhaps I’m biased when I don’t see a problem with Google archiving so-called orphan works, publications that have been abandoned by both author and publisher, are out of print, and are effectively if not technically out of copyright. I don’t see a problem with making available works that no one can easily see/acquire, that no one is promoting, and that no one is making money from—but that may, and often do, still have great value.
I’m also biased, however, in favor of one of the great archival minds of our age, Robert Darnton:
Critics say that without the orphan books, no competitor will ever be able to compile the comprehensive online library Google aims to create, giving the company more control than ever over the realm of digital information. And without competition, they say, Google will be able to charge universities and others high prices for access to its database.
The settlement, “takes the vast bulk of books that are in research libraries and makes them into a single database that is the property of Google,” said Robert Darnton, head of the Harvard University library system. “Google will be a monopoly.”
The question for Darnton and others, though, is: is this a bad thing? Google does not somehow become the exclusive copyright holder to orphan works. Other groups and companies are welcome to do the same thing and to also make money from it. And this particular monopoly is, contradictorily, limited and temporary. There will be well-funded competitors. There’s no indication that Google wishes to charge for access—it’s fair to assume Google will monetize the collection through targeted advertising as it does with search results and within Gmail. The original orphan works don’t disappear.
So I don’t begrudge Google its ambition. While experience shows that powerful groups try to control archives as a way of shaping history, experience also shows that seemingly dominant businesses, such as General Motors and Microsoft, are inevitably outflanked. And most important, as Schmidt explains in the Auletta interview, Google thrives only in so far as it is trusted. It’s a business that deals in user data, and that demands trust. Trust broken once is trust lost, so it’s in Google interest to welcome competing ideas, to accept criticism, and to be, above all, open.
“Oprah Winfrey, or to be more precise, Oprah’s Book Club, is being sued by the inventor/patent attorney Scott C. Harris for infringing upon his patent for ‘Enhancing Touch and Feel on the Internet.’ So Oprah’s Book Club is now one of many people and entities being sued over this patent because they allow people to view part, but not all, of a book online before purchasing it. Mr. Harris also sued Google Books for infringing upon this patent. He actually was fired from his position as partner at Fish & Richardson for that, because Google is a client of that law firm and they had conflict of interest rules to uphold.”
It would be entertaining to see Oprah give very wide and mainstream publicity to the abuses enabled by our current patent system.
Indeed. She’s still one of the most influential people in the country—I wonder if her audience is getting close enough to a baseline tech-savviness such that they’d understand the implications of Harris’ lawsuit or the significance of Apple’s announcement yesterday that they’re at last removing digital rights management from songs sold on iTunes. I’d wager if Oprah discussed these legal issues on her show, or perhaps invited Eric Schmidt and record company execs and a few college students, that groups like the Electronic Frontier Foundation would have a banner fundraising year.
Update: The Federal Trade Commission will look at DRM issues soon, including soliciting of public opinion in a town hall setting. To folks new to these issues, it might not seem like digital rights management (software that controls how/when you use other software, such as code in an .mp3 that keeps you from playing that .mp3 on more than two devices) and copyright are explicitly related. But they both can abuse the intended purpose of intellectual property law: to encourage innovation, but not to guarantee inventors (nowadays companies) a permanent income from their inventions.
DRM was created to combat copyright infringement, which it does, but poorly. Just like popping the tab off that VHS tape, a person can circumvent every kind of DRM with a little creativity and patience. The lucrative arms race to create unbreakable DRM, however, has led content providers to radically redefine what it means to “own” a piece of writing, music, or video, as illustrated in this Free Culture contest-winning video:
In their vigilance to combat copyright infringement, content providers created a cultural regression: for the first time, content that you purchased legally has had some of its fair legal uses stripped away. An example: just as it is legal to record a TV show on your VCR in your living room and watch it later with a VCR in your bedroom, it is legal to buy a song online and burn it to a CD—who wouldn’t want to listen to that same song in their car and not just on that one computer? But with DRM, that’s not possible. In the name of protecting copyright, a fair, legal use of a thing you own has been negated. Content providers are protecting their value in the product at the expense of yours, in some cases breaking your hardware or violating your privacy to do it.
The common response to this situation is, well, the rules of the game have changed in the digital era—yes, the value of the album I bought is lessened, but I’m happy to pay less for it in the first place. That’s how the economy works.
True, but culture doesn’t work that way, nor do the necessities of, you know, being human and needing to express yourself or listen to and share someone else’s expression. The use of DRM presumes that there are content providers and individual consumers (or “end users”). This has never been the case with art. Indeed there are providers—musicians, painters, photographers, and the thousands of varieties of distributors. But the consumer of art is not an individual; it has always been a group. Name a favorite song that you haven’t wanted to share and, doing so, didn’t find immensely more meaningful, more valuable? Subversion of this fact of life is the essence of DRM. It is the artillery in a war on community, a war waged explicitly upon the simple act of sharing. Again, as a Free Culture award-winning video demonstrates:
The History, and Future, of Copyright
What we have is a classic battle over the definition of copyright, one that goes back at least as far as the eighteenth century. My girlfriend just shared an excellent essay with me on the history of copyright (“Literary Property Determined” by Mark Rose) that covers how the English and Scottish created the modern concept of copyright—that creators own the right to produce and profit from their creations for the length of their life plus a number of years (at first thirty). The original English system granted copyright in perpetuity: Shakespeare held the copyright to his own works, for example, and his descendents inherited it, allowing, say, the words to Macbeth to be, in essence, physical property to be passed down or sold.
Meanwhile, in Scotland, upstart printers working under Scottish law were reprinting Shakespeare’s works and selling them back into the English market, like bootlegging movies today, but legal. Scottish law held writing to be common, in the public domain, immediately. Drawn-out court battles ensued, resulting not in a final, logical, immutable decision from the bench but in the compromise we live with today—copyright lasts the life of the work’s creator plus a (theoretically) fixed amount of time. The compromise came about simply because, in the legal system, the argument was intractable. The English and Scots just wanted a decision so they could get back to business.
In other words, copyright has never been something somehow built into natural law, like the rights to life and liberty. Its insoluble nature necessitates a negotiation between interested parties, one that allows profit and culture to coexist, and in fact to drive one another.
It’s Time for a New Compromise
A new compromise would require a major change in the point of view of content producers, namely, to admit that conversation is king, not content. As Cory Doctorow wrote the other day:
If I sent you to a desert island and gave you the choice of taking your friends or your movies, you’d choose your friends — if you chose the movies, we’d call you a sociopath. Conversation is king. Content is just something to talk about.
It’s a hard thing to wrap your head around if your job depends on profiting off discrete things like e-books or iTunes downloads. But profit on cultural goods in the digital era, as it did in years past, depends upon creating a community of users, people enthusiastic about your product, willing it with their money and attention to stick around. One reason the music industry is so fun to watch implode is how little it understands what about music makes people happy. It’s the community. The music industry, including radio, grew huge because it was the only vehicle by which thousands of people could share in the experience of a song. But the music industry, in the long term, is culturally irrelevant. It was always preposterous that someone should expect to make a living off being a pop musician—there’s never been a shortage of good music, just a shortage of ways to distribute it; it’s only now, given the inexpense of acquiring a recording, that music lovers can make that statement clear. Music lovers want 1) music, 2) people to share it with, and 3) the shortest route to 1 and 2. There is no longer a need for the music industry, period.
The same exists for more than the music industry. I went to a Red Sox game this past spring and took a video with my digital camera of fans singing “Sweet Caroline” during the seventh inning stretch. I uploaded it to YouTube that night and e-mailed a bunch of friends to view it. The next day, I had an e-mail in my inbox not from a friend but from YouTube, saying a third-party had notified YouTube that my video was “infringing”. I checked the fine print on my ticket stub, and sure enough, part of the “contract” explicit in buying a ticket is that I will not produce an account of the game. It’s a version of rights management, and Major League Baseball and Red Sox are indeed within their rights to protest my posting of a video of the events at Fenway Park.
But how stupid, or vindictive, or twisted do you have to be to want to remove a free promotion for your product? They would say—and I’ve seen MLB say so elsewhere—that they have to request the video be taken down, that inconsistency in enforcement forfeits their right to enforcement altogether. However, baseball, and all sports leagues, are thoroughly inconsistent in their enforcement of their copyright on “accounts of the game”. Newspaper accounts and box scores are accounts of the game. And do you see ushers confiscating cameras? Do you see parents and kids being shaken down for keeping score? What you do see is enforcement for anyone else’s work that MLB could get a financial piece of, such as when this year they tried to argue (and lost) that fantasy baseball leagues didn’t have the right to use players’ names and statistics, that they should be required to buy a license from MLB. But the finance part is the very point: in the digital era you don’t make more money by restricting access to your content; you make money by making your content available to more people, by making more people more fanatical.
Independent musicians have learned that there’s more money to be made drawing people in to your concerts and merchandising by letting fans listen to music online for free than by charging for it, just like MLB should know that my sharing my video would have resulted in five or six friends being more likely to buy Sox tickets. Digital content is little more than an advertisement to join a community of like-minded people, and that’s where the money is, in the community not in the content.
It’s time for “end users” to consider seriously what they’re willing to pay for and what they’re will to see fade away, industry-wise. As with the English and Scots, usage restrictions, through things like DRM, ultimately freeze business, and the only way forward is with a new understanding on copyright. There’s no doubt that this new understanding will favor consumers, just as the old copyright understanding favored the Scots against the entrenched English. But without an agreeable framework, no one will be happy, and the financial platform for digital works may crumble altogether.
The rollout of digital rights management (DRM) software has been an unmitigated disaster for media companies. Whether or not companies find a negotiated line with customers between protecting rights and protecting fuctionality is to be seen, but the cacophonous backlash to rights management of CDs has ruined whatever credibility music companies may have had left.
This week introduced another irony to the DRM debacle: the BBC reports that rights-managed eBooks don’t ever stop their rights management, even after the copyright has expired and allowed the book to be in the public domain. So in addition to crippling individual computers with unsafe software, media publishers flaunt copyright law on fair-use in favor of defending copyright law pre-expiry.
“It is probable that no key would still exist to unlock the DRMs,” Laca said. “For libraries this is serious.”
“As custodians of human memory, a number would keep digital works in perpetuity and may need to be able to transfer them to other formats in order to preserve them and make the content fully accessible and usable once out of copyright.”
In other words, DRM for digital books completely undermines the mission of libraries and archives. Works can’t be kept, salvaged, or shared. And under laws being considered in certain jurisdictions, it would be illegal to attempt to hack the DRM software.
Seems like a great time to get a degree in copyright law!