Off on a Tangent - C. Sprigman



Wilson Library, UNC, Chapel Hill

REV. 3/13/2013

It is important to pause here for an extended tangent on the orphans. The citation of the figure of 85% non-renewal of copyright comes, from Grimmelmann's "The Google Book Search Settlement, Ends, Means, and the Future of Books," American Constitution Society Issue Brief, April 15, 2009. p. 8. Grimmelmann cites his source for the figure; it is a lengthy piece in the Stanford Law Review by Christopher Sprigman ["Reformalizing Copyright" 2004, op. cit.] that gives the details of publishing numbers. I think I feel safe with Grimmelmann in accepting the 85% figure as plausible and am willing to extrapolate from this number for the post 1964 time period (legally irrelevant as such extrapolation might be).

First, let us consider the time period covered by the 85% of books (orphans or not) that have fallen into the public domain. The operative legislation is the "Copyright Renewal Act of 1992." This act removed all requirement to renew copyright.

What is the arithmetic here? The renewal had to be registered 28 years after publication to get the full benefit of the 56 years of protection from verbatim copying. Since the restriction was lifted in 1992, 92 - 28 = 64. That means that after 1964, no more books reverted to the public domain for lack of renewal. That also means that 85% of the books published before 1964, did, in fact, unambiguously enter the public domain with no chance of reversal and reinstatement of copyright.

It may be worth quoting a few passages of Sprigman's analysis to get a flavor of the legal language without any mention of "concern" about Google and mention only of concern for the ham-fisted actions of Congress.

In explaining the status of works published before 1964, Sprigman makes the following calculations: [note: CTEA refers to the "Copyright Term Extension Act of 1998" AKA the Mickey Mouse Act - keyword: "life+70." The crucial milestones in the reworking of copyright before that as taken from Sprigman are: the Copyright Act of 1976, the Berne Convention Implementation Act of 1988, the Copyright Renewal Act of 1992 and CTEA of 1998].

For registered works published between January 1, 1923, and December 31, 1963, the CTEA extended the term of any subsisting copyright by twenty years. But because the average renewal rate for works published between 1923 and 1963 was just 15%, 85% of the works originally copyrighted during that period had already passed into the public domain. Thus, while the CTEA extended the terms of subsisting copyrights, the filter of renewal had already eliminated the vast majority of copyrights granted during this period from copyright regulation. The burdens of copyright, therefore, were visited only on those works that had passed through the renewal filter - i.e., only those works for which continuing protection could be expected to provide some return for the author to offset the social costs imposed by continued exclusivity. [Sprigman 2004, p. 537]

To translate this into actual English: "...only the books that were renewed continued still protected. Only books that still produced revenue were renewed, he surmises. Thus copyright really worked only for a small percentage who would have made money in any case, copyright or not, I surmise. The idea of "pirating books" as one would "pirate" tapes and CD's does not enter the discussion. The use of the term 'some return' implies that the dollar amounts are small."

The "i.e." phrase in the quote above is a puzzler. Sprigman seems to make the point that authors have some concern for the social structures within which their books operate. Actually, I doubt that. This phrase seems lawyer speak running away with itself. It is disconcerting to parse legal speak.

The "social costs" may be a reference to something called "public choice theory" which tries to explain the fact that lawmakers and public administrators are costing all of us a lot of money some of it ending up in their pockets. This phenomenon is explained as a natural expression of democracy in action. Someone has written a long article about this on wiki.

However, it is refreshing to read Sprigman speaking of the "burden of copyright" and the "social costs" of exclusivity, even if they may be negligible. In my own readings about the Google case, I have not encountered the notion that copyright has social costs, only that Google was trampling rights.

Sprigman continues with his narrative of the timeline of the effects of the various acts from '78 to '98. I quote the next paragraph to show that it was not just my own non-lawyerly impulse to apply the 85% figure to all orphans and to engage in the guessing game: had Congress not decided to throw out renewals only a small fraction of books would ever be under copyright, even today. But since all the bodies were thrown into the lime pit by the Library of Congress, we will never know, will we?

 For registered works published between January 1, 1964, and December 31, 1978, the CTEA extended the term of subsisting copyrights by the same twenty years. But because the Copyright Renewal Act had granted an automatic renewal to all subsisting copyrights not yet in their renewal term, the CTEA extended the copyright term of a class of works in which, according to historical data, approximately eighty-five percent of the copyrights would never have been renewed. In contrast to the situation described above, the CTEA visited the burdens of copyright protection on all works from our recent past, including the majority that would not have passed through the renewal filter. As a consequence, for a large percentage of these works, costs were imposed without the promise of any offsetting benefit. [Sprigman, ibid.]

Translation: from 1964 onward, every poem by a fourth grader written in crayon and stuck on the refrigerator door will now be copyrighted - oh, and all books from our recent past as well.

The Google case shows us the costs that bring no benefit. There are the legal costs, which Google wants to bear as part of the settlement as a sort of philanthropy for the wing-tip set. But there are also the inefficiencies in the delivery of research materials, which are consideable.

In my own non-legal thinking I have come up with an appropriate test for copyright. If a work has not generated revenue for 20 (no, 5) years, it should fall into a conditional "electronic public domain," given that on the author side there has been no effort to revive a revenue stream through additional marketing or re-publishing. The maxim of "no marketing, no revenue" should be elevated to a legal principle in the area since it is a publishing reality.

As long as a book is being marketed it is bona fide player. Books that end up sitting in boxes waiting to be taken to recycling should never have been printed and may not be printed in the dawning age of electronic publishing.

On the public side, however, the public can claim its right to electronic delivery of research materials either at rates set by the author of works being marketed, at automatic rates set algorithmically for works being marketed, or for free for unambiguously public domain or for the new "electronic public domain" works that are not or have not been marketed. The legal principle of "concern" should be demoted from the legal arena as too vague to carry meaning and for muddling muddled minds further. Since this public effort of scanning and e-delivery might have added new value to the book, some benefit should reach the author, should a certain threshold of downloads be achieved and should that person be available to collect.

The Sprigman legalese: "... costs were imposed without the promise of any offsetting benefit" has an ominous sound as though something extra-constitutional were going on. Burdens are being imposed just for fun or because the imposers were operating without a clue. Clearly 85% percent of the pre-1964 authors declined to pursue copyright. Congress imposed copyright on later cohorts of authors without asking them. The notion that reuse of public domain material could be a benefit to authors would never have occurred to the legislative assistants drafting the CTEA nor to the legislator persons skimming over the text between phone calls. They were all aglow of the benefits of copyright to Mr. Bono and the media celebrities that would show up at their campaign rallies along with Mickey and Donald and the Rolling Stones. Ladies and Gentlemen of Congress, books are different, how could this have passed you by?

Sprigman makes one of his the constitutional arguments in a round-about manner, but one that can be followed with a cursory understanding of the value of property.

The copyright term is now sufficiently long that the net present value to the rightsholder of a copyright is practically indistinguishable from what it would be under a perpetual term. [It has been] ... argued that the current, post-CTEA copyright term of life plus seventy years has a net present value that is 99.88% of the value of a perpetual term.

 That the copyright term is now effectively perpetual is an odd development in a country whose constitution specifies that copyrights may be granted only for "limited times." [Sprigman, p. 522]

The Sprigman, pre-Google arguments have a concern specifically for the principle of copyright, its actual historical development and use since 1909 and a reading of the constitution in context of legislative developments in 1998. The effect of this news would be quite different on a librarian-cum-scholar or better, scholar-cum-librarian than on a copyright lawyer.

I can take the role of the librarian-cum-digital humanist. According to Sprigman's graphs, 100,000 items were copyrighted in 1910 and 300,000 in 1964. So let us pick an average of 200,000 per year. The crude graph on the renewal rates is difficult to read without the data set that made the graph, yet it looks as though the 15% renewal rate was achieved only in 1964, from 1934 to 1960, it would seem to hover between 4 and 12%. It is important to add, that only 5% of copyright registrations are books. The concept of orphan as applied to books does not occur in Sprigman.

To calculate orphans from 1909 to 1964 or actually to 1978 (CTEA 20 year extension), the last year that failing to renew would cause a lifting of the burden of copyright would be rather pointless. Yet to calculate the numbers for one year could be instructive.

Of the 300,000 items copyrighted in 1964, only 45,000 would make it into the present under copyright given the 15% renewal rate.  If we take 5% of all categories - the rough percentage of books - (music, photographs, periodicals etc. make up the bulk of registrations) that would yield 2,250 books. If we can assume that the opt out figure for authors declining to become part of the Settlement should reach 10% (of the 2,250) that would take 225 items out of contention. These 225 would obviously not be part of the 85% since their copyright was renewed. No need to opt at all if the copyright was not renewed. If another 10% would opt in, that would remove another 225. Hence one must accept that of the 1964 cohort of published books, only 5%, less than 2,000 books would be "true" orphans. Only 2,000 books would have authors or heirs who cared enough to renew before 1964 but did not care to opt IN or OUT of the Google deal. If a larger percentage of the 1964 renewers - from 46 years ago - also opted IN, stranger things have happened due to the inevitable publicity, the number of orphans could shrink by another couple of points into the category of rounding error.

Let us recalculate. If we take the 15% of 15,000 books with active copyright - 2250 - and postulate that 10% of the "renewers" would opt out, there would be 225,  1.5% of the 15,000 copyrighted. If I can trust my solar calculator. However, that would make the percentage of the opters out rather low in reference to the total number of copyrighted holders, legally inconvenient. The 6800 opters out seem to have impressed Judge Chin for reasons hard to fathom. He also seems be impressed by the briefs of authors outraged by any presumptuous circumvention of the prerogatives of Congress. It is possible to slice the pie any number of ways - the point of this exercise is to create some doubt that orphans are 'the big problem.' Before 1964, this was clearly not the case.

To a librarian concerned with the electronic delivery of books, pre-1964 orphans are hardly a slice of the pie. 2,000 would be an 1/8th slice; half of that barely a 1/16th after that we are talking just crumbs: 12,750 public domain, 2,250 renewed, 225 opted out, 225 opted in, 1,800 bona fide orphans.

Of course, I would agree, the law should not trammel a minority - neither should the library of 12 million be trammeled by a minority. But these are not the arguments of the copyright lawyers as represented by the class of Grimmelmanns. I should add that I don't really feel that good about the numbers. That 5% of registrations are books can be gotten form LOC reports. What the renewals for the category proper books might be I have only inferred. I can imagine that music would be renewed at a greater rate than books. But I can also imagine that many of the close to 100,000 pieces of music copyrighted were not worth renewal. I offer only a very tentative look at the numbers.

A Look Behind Sprigmann's Numbers

One would think that with an issue as important as a digital library of many millions of books, the data of what actually is copyrighted would be better. One could imagine that lawyers would know excactly what they are fighting for, they would know the answer to the question just how much money is being made on out-of-print orphans. That is a trick question to check the level of awakeness - out-of-print orphans do not make any money at all.

Yet it would be good to know more. Digging through Sprigman and LOC anuual reports it is possible to get some hints. Let me list what I have been able to find out. There is some randomness in the list, but it will convey a general impression.

Before 1800, of the 13,000 titles published 556 were registered on the Federal level - 4% [Wiki - U.S. copyright law]. N.B. Common Law Copyright was practice.

A survey by Sprigman of the holdings of Bancroft Library of San Francisco publications showed that only 34% of Books were copyrighted in 1909 [Sprigman p.512].

From Landes and Posner, p. 212 quoting Jason Schultz, cited by Sprigman p. 497 - 147 of the 10,000 books published in 1930 were still in print in 2001. That is under 2%. Of course we do not know when these 10,000 applied for copyright. A book published and registered in 1930 would have its initial protection expire in 1958 - renewal would protect until 1986 putting it under the 1976 act which would grant life plus fifty (or publication plus 70) thus clearly making it under the Mickey Mouse Act, life plus 70. Of course should the author have died in the 1930's - the book should be in the public domain by now. Good for Husserl, bad for Heidegger.

Initially, only Books, maps and charts could be copyrighted. Editions or imprints could be copyrighted in 1801, music could be copyrighted in 1831 and photographs in 1865.

Production of new books in 1900 was around 4500 and around 5500 in 1901. New editions added 1800 in 1900 and 2600 in 1901. Thus for 1901 there were roughly 8100 books produced in the US counting editions by foreign authors.

Yet, in 1900-1901 fiscal year there were 79,857 (x 2) items received and stamped and cataloged by the copyright office:

Books, proper......7,746
Pamphlets.............5,770
Newspapers.........9,010
Plays.......................634
Periodicals..........17,702
Music.................16,709
Maps....................1,718
Engravings............5,687
Lithographs..........1,817
Photographs.......13,064

Books cover roughly under 10%

1947: 230,215 registrations -  9.903 books - 13,180 renewals (not listed by class)
1948: 238,121 registrations -  9,786 books - 15,796 renewals
1949: 201,190 registrations - 10,254 books - 13,675 renewals
1950: 210,564 registrations - 11,323 books - 14,531 renewals
1951: 200,354 registrations - 11,272 books - 16,372 renewals

Since the busy workers at the copyright office want good numbers they often count items deposited (2 for each copyright) as "registrations." Thus I cite these numbers with a minor caveat and only to demonstrate the relatively minor role of books in all that.

Regarding the renewals, no breakdown by category is easily available but my research is not completed. This really makes a sham out of the 85% non-renewals. We can surmise that a musical composition would more likely be renewed to garner performance revenue than an out-of-print book that will not be reprinted - not by the publisher, not by the pirates. But since there are so many more music pieces copyrighted than books, if a large percentage of music turns out to be mere shooting stars, renewal rate percentages of other categories could be impacted significantly. On the other hand, if journals, the other large category are renewed as a matter of course by the publishers, books may actually represent less that the general 15% renewals.

It is ironic that many of the journals have made it into electronic distribution, but the USDC is balking at out-of-print books.

A source quoted liberally by Sprigman is William M. Landes, Richard A. Posner, "The Economic Structure of Intellectual Property Law," 2002 available from AEI - http://www.techlawjournal.com/intelpro/20021119.asp . Also available from AEI is:
"The political economy of intellectual property law" - http://www.aei.org/docLib/20040608_Landes.pdf. There is also "The Economic Structure of Intellectual Property Law for 50 bucks from Amazon (with free peek) or Abe.

Grimmelmann on Orphans

Prof. Grimmelmann expands on the question of orphans in a substantial brief. (Grimmelmann, 2009 op.cit.). This 16 page brief was written after the first settlement attempt and before the ameded settlement. Prof. G starts with a section about dangerous monopolies that was not able to hold my interest or my wandering attention at the obscure arguments and wierd hypotheses. He continues with a treatment of the orphan problem.

Of course it is not possible to say orphans are not really worth mentioning. The whole idea of calling them "orphans" raqther than derelicts spins the question in the direction of "serious problem." It would be easier to say: "Let the Google people haul off the derelicts. If someone shows up with a title, give them 60 bucks and sign them up in the Scrap Metal COOP." Orphans are serious; it is potentially politically incorrect to use the term; it is insensitive language at best - think of the actual orphans who are not really amused although they are putting up a brave front.

Prof. G has the same figures from Sprigman; yet, he reads them differently. Obviously, the numbers of orphans before 1964 are miniscule. But for the effort of Congress, the numbers would continue to be small into the present. Sprigman says as much. The tactical Grimmelmann would not profit from mentioning that. Grimmelmann cannot say that the current cohorts of authors care no more about about protection from verbatim copying than those before 1964 who let their rights lapse. In the non-legal world that would be miopia and bad research and would earn low marks. In legal world this flies. In legal world one needs only minimal plausibility and the desire to win; the natural ambiguities of language and of the human condition will do the rest. Yet, some illusion of financial interest has to be squeezed out of the facts, else forget about the whole thing, boooring, the question becomes irrelevant.

 For books, orphan-dom is a serious problem. The low renewal rates under the 1909 Copyright Act and the small fraction of books kept in print today suggest that the vast majority of books ever published are not being put to productive use. The precise split between orphan works and ones whose owners are rationally allowing them to lie fallow is impossible to ascertain, but no one thinks that the number of orphans is small. Half of all books would be a conservative, lowball estimate. [Grimmelmann, 2009, p. 8]

Prof. G wants us to think he is leading with a statement of fact: "For books, orphan-dom is a serious problem." This is not fact, this is spin. It is preparatory spin on which the rest of the legalistic mesh depends.

Consider this: a 98% compliance rate with the seatbelt law is considered acceptable, or at least was acceptable until automatic seatbelts pushed compliance even higher. One would not lead with the sentence: "For seatbelts, non-use is a serious problem." Granted it is a problem, people die because of it, one cannot not draw the use of seat-belts into question because of 2% non-compliance. Although G quotes the 85% figure, he obscures the actual .04 of copyrights that a orphaned books, the real small number of orphans for the last time we have a body count. Else he would have to say: "I think we should can the settlement because we will never find .04 of copyright holders." Hardly convincing. You will always not be able to find .04 of any class, waiters at the Cheesecake Factory, taxi-drivers in New York, Tenors singing at the opera. Name the category.

The next sentence is a puzzler: "The low renewal rates under the 1909 Copyright Act and the small fraction of books kept in print today suggest that the vast majority of books ever published are not being put to productive use." The implication, absurd on its face is that productive use is equated with authors registering their copyright or that keeping more books in print would increase their productive use. The actual facts are that when books disappear from the market they are commercially dead - they are taken to libraries where scholars start distilling their "Zeitgeist," if I am allowed a little jargon.

No more monetary value - no revenue stream - no more income to the author - no monopoly of things of no value - only a scholar maybe, quoting a sentence and keeping an idea alive. The logic here is wretched since it seems to equate "active copyright" with "economic viability." True, economically viable books have copyright maintained by their authors. But there is no path to economic viability via copyright. A degree in English should be a prerequisite for Law School, although it does not always help.

To flay the straw person a little more; the syllogism would go like this:

Steinbeck published Cannery Row in 1945.
The Steinbeck Foundation maintains active copyright.
The Steinbecks made a lot of money with CR.
Joan Beckstein published her novel Rows of Cans in 1945.
The novel flopped, sold nothing, copyright not renewed.
Had Joan only renewed the copyright it would be put to productive use.
There would be a Beckstein Foundation etc. etc.

In the world of law, "registered rights" have an automatic value - not for the registered rights holder necessarily, but potentially for the lawyer who may be called to defend those rights even at the behest of a third party. Rights must be "postulated," they must be vociferously declared, emphatically asserted in order to be defended - even if the article in question, a library book that sold 43 copies, 35 to libraries and the rest to friends and family - had never ever demonstrated economic value. We live by principle, by God!

Into the Jungle

NYPL - Reading Room

Get ready for a major, though be it thoroughly amateurish and dilettantish expedition into the law.

There is nothing wrong with either amateurs or dilettantes; they have gotten a bad name since their efforts are found wanting compared to "professionals." Yet professionals have another problem - a focused, narrowly focused perspective on one thing - the 3-point shot, the pass rush, running the marathon or the requirements of Rule 23(e) of the Civil Code. The comparison of amateur to professional has its source in a "results oriented" ethic that has only one desirable outcome - get that ball in the basket; do whatever it takes. Amateur athletics does have some status and there is a rumor about something called sportsmanship. In the field of law, there are no amateurs; there are professionals, then there is nothing and then there may be a scorned dilettante or two and the next level is the clueless idiot followed by the legion of easy marks. The law is an intellectual construct that demands professionalism.

So what to do? I will never be a lawyer, no hope of a professional career in the law, no hope even of being a dilettante of the law. Yet intellectual constructs do have a handle. The purpose of the construct is to mediate, to regulate, to punish, to apply consistent order in the unruly world of human interaction. There is nothing older in history than disputants going before the judge. Theoretically, anyone can at least grasp that handle.

In the old days, judging (in contrast to mining at the time) was not professional as it is today. Judging was a form of authority - whether to settle a dispute between neighbors or whether a neck was on the line. The spectators to the dispute would have opinions as to what is right and what is wrong, but they would have no authority. Today, there are any number of non-lawyer kibitzers following litigation; they may have an interest in the issues, they may desire a specific outcome, they may believe in the electronic representation of knowledge, but alas, they may have no professional or even dilettantish grasp of the law. They do have a certain moral authority, an earnestness focused on the issues far from tactical maneuvers, and that goes for those in favor or against the settlement. Of course there are the lawyer kibitzers - they are just spinning without the real responsibility of having skin in the game.

Upon that recognition, it is time to pack up the mosquito netting and the sunscreen and a baseball bat and head into the jungle. One might ask: are there not enough people with actual jungle gear and netbooks hooked to Lexis in the jungle already? Yes, there is a crowd. But they are all lawyers, they all have a fantastic cash flow they have to keep gurgling along, and they cannot be trusted. It is not just that they are trying to deceive, of course they have to deceive; deceiving is survival. More problematical is that they only see the legal trees. They do not care that the rest of us have trees in the jungle as well. Just a few short paragraphs of rhetorical analysis will show that legal arguments would never stand outside the hothouse of legal rhetoric and judicial procedure. Yet there they reign supreme. Similarly, obvious and clear as a bell common sense, the conviction of a common person that a library of 12 million pdf's is a splendid thing does not cut it in court. Of course, whatever splendid thing is about to be gored is mentioned but with the clear understanding that no amount of splendidness can overcome the requirements of Rule 23(e) of the Civil Code. If you want something from the court, there has to be a legal strategy.

So let us start with a hypothetical: citizens, librarians, computer techies, find themselves in the situation where they want to accomplish something, let us say, they want to deliver library books digitally, hypothetically.

Librarians have had long experience delivering journals to researchers via pdf; formerly journals could be found only in dusty runs of volumes in libraries. To try it with library books is simply a no brainer, e.g. it would occur even to someone with no brain. That is to say, to do this is not an evil plan to make untold zillions but is a quite reasonable, adequate and fair, not to mention absolutely necessary step in knowledge management. But then: Oh, rats, there is copyright. Full stop. Miller Time.

Yet, the law is really an opportunity for creativity. It is like top down programming; first write a short general treatment, then find the pieces of law to build it. Or work the pieces with a fork and a screwdriver till they fit. In the case of the electronic library, the initial strategy was to deliver public domain books and books of active supporters, read: partners. With books of authors who are in the category of "whereabouts unknown" the strategy was to use a computer program to deliver only three-line snippets in order to skate safely under the fair use provisions. While nothing really useful was delivered to the users to read, at least the text would be in the index and not lost forever in the mists of time. Nonsensical as the notion of sending readers to go find a rare physical artifact when an electronic version is sitting on the server might be, it is an object lesson in an attempt to wiggle out from under the law. The question for professionals and amateurs alike: "Is it time to wiggle out from under copyright?" This prospect has turned out to be a separate can of worms for the lawyers.

Journals

With Journals, the publishers simply made a deal with the agents of delivery; articles were delivered; nobody sued anybody. If you want some journal article from one of hundreds of journals spanning the time from the present back deep into the 19th century, there is JSTOR (and others). Doubtless the publishers found that a centralized - non-profit to be sure - collection agency for user fees would be easier than trying not to lose money running an off-print division.

The JSTOR system is antiquated and in dire need of a major investment, but that is a secret known only to those who actually try to search the text-base. Alas, I (as myself) am probably one of the few who has explored the vast uncharted dimensions of OCR errors in JSTOR - as part of an attempt to compare the OCR of Google Book Search with the JSTOR OCR. [OCR refers to the automatic rendering of printed characters into electronic text.] I was surprised to discover that in certain fields the JSTOR OCR was very bad - strangely bad, considering the system is used widely the world over. What is more puzzling: that nobody notices or that nobody minds? One can always print out the pdf and not bother with the electronic text, welcome to the 20th c.

Nobody wants to take on the cash cows raking in user fees twice daily for the amalgamated non-profit IT-sector carrying the load for tired university computer centers. Why disturb those dozing in their stuffed chair as the sunbeams coming through their windows onto the quad play with the dust motes in their paneled offices. I would like to see a headline in the Chronicle: "JSTOR, a Disaster for Scholars." To get a feel for the problem just google: "B6ll" for JSTOR articles on Heinrich Böll; or: "Schiitz" will give you Heinrich Schütz. For extra laughs Google "6t6" or "all6". Look at my attempt to get to the bottom of this curiosity in my postings on "Humanist" in July 2010.

OCR errors are not original sin, in fact they can be expunged easily, yet the  public sector licensing agencies have no incentive to improve their product, probably a combination of lethargy and torpor. They could use a little of the air of Mountain View. The fact that the fix would be so easy makes this one of the longest running (private) jokes in the cloud, running long before there was a cloud. This joke, of course, is on the humanities professorate. Another joke is on the thousands of scholars around the world who do not belong to an institution that has a JSTOR license. But I am meandering. Will someone slap me.

Books

With books, the problems are more complicated. There is no easy link from the title page of an individual library book to the copyright holder of that book. The link from the journal run to the publisher, the holder of the copyright is an easy one by comparison. With books, the strategy has to be one of counterpunching. You enter the ring, sign a deal with libraries, start scanning books, start delivering pdfs, you wait for the first big blow. The defense is the delivery of only snippets for post-1923 books. Two years later, here it comes. Fueled by rhetoric about victimized authors, egged on by the popular press, abetted by all sorts of anti-corporation anti-technology activists, aided by defenders of rights of all stripes, supported by a few librarians of an ancien regime, (did I mention copyright lawyers flushing down money), the campaign to stop the corporate juggernaut scanning library books had been started.

For the combatants the game is exclusively tactical. The professionals had already run up 40 million in billable hours a year ago, 2010. At some point, the weight of money owed becomes so great that the combatants yearn for a settlement. Into the fray marches a new crowd of combatants - the carrion eaters - these have a vested interest in the system, in prolonging conflict in fervent hopes someone will bleed to death and they get to gnaw the bones. I can understand (actually, not really) an author calling Google out for having scanned and indexed an out of print book still in copyright. I can applaud Google for giving the author a choice to either not have the book delivered or to have Google collect a reasonable rate. I have no patience for a defense of rights for authors or heirs of authors who are unknown - given that historically only a small percentage of copyrights (1%) are actively maintained. I cannot respect the various red herring dragged across the stage by lawyers representing interest of other juggernauts wanting just to defeat any effort by one so called monopolistic juggernaut.

Especially offensive is the argument: Why do copyright holders have to bear the burden of filling out a web form to either get money or opt out? This argument makes a joke of the public good represented by libraries which are a fundamental benefit to society. It ignores the technological realities of electronic knowledge management. It is an attempt to secure a place for slide rules in a world of scientific calculators. This will become known as the "Scott Turow" argument; I quote him from the NYT, April 7, 2011: "We have a fundamental disagreement with Google: we believe that without first obtaining permission, Google is prohibited from copying books for commercial purposes." The add-on "commercial purposes" and the omission of "out of print with no prospect of ever again being reprinted" may make the position appear reasonable; yet, that does not alter the fact that the land baron is claiming his property - the books belong to us, thieves will be shot on sight. He congratulates the judge for his insight and mentions in passing all the benefits to authors and humanity he might have agreed to had the original argument not been, well, so apodictic.

It is permitted for victors to dance on the graves of the vanquished, and I have no desire to spoil Mr. Turow's jig. Yet, it is disturbing to see him on television earnestly defending the principle of copyright without mentioning or feeling bad about the fact that his copyrights will be active 70 years after his death. It would be hard to keep a straight and earnest face on camera explaining that to the viewers and fielding their questions, even for a lawyer turned detective story writer. That is the stuff of dynasty; that is denying water to settlers in a wagon train dying of thirst. The index is the new west; the index is the new shining city in the intellectual landscape. The novels of Turow will be an extremely minor part of the index; yet, he has sold millions and on that basis presumes to speak for thousands of academic authors who have sold 18 copies of their book, don't care a whit for their copyright and whose only chance of recognition is to be found in the index and delivered electronically via pdf to be read and eventually quoted.

One should expect great writers to be able to spin words; one might encourage Mr. Turow to spin a little in favor of the public weal, not just the weal of the small percentage of publishing superstars. He should have to write an essay how copyright benefits the 99% of authors who are not a commercial success. This really takes me back to our collective mercantile past when guilds would defend their rights with cudgels: for what is good for the guild is good for all, er, from our perspective to be sure.

In short, a crowd has formed to stop the juggernaut. There are not just the members of the "25 million sold world-wide club." There is a second group of anti-juggernauters which is lead by other juggernauts with spare legal capacity. And finally the effort is abetted by the chronically outraged. If it is good for them (the juggernaut) it cannot be good for us (the victims in general) even if the library of 12 million books would be good for everybody who can read. That is worth an investment to some.

Tactical vs. Strategic

Before I can take a look at the actual opinion, some considerable background on genre is necessary. This comes from my first foray 100 feet into the jungle. There are two major genres of law writing which come to play here.

First there are briefs either filed with the court or just published dealing with specific litigation. These articles explore the legal questions in ongoing cases and propose specific strategies or enumerate problems that have to be overcome. A fiercely contested bout of litigation can generate several hundred of these articles which become part of the court record or are published in journals that follow litigation.

The second genre are lengthy articles in law reviews that take some question of law and describe what the issues are, what the latest actions of Congress have contributed to whatever muddle the law finds itself in, and what if anything can be done to deal with the muddle and the crowds of lawyers weaving in and out of legal loopholes, read: seizing opportunities for creativity.

Copyright is one such area. The two genres - tactical pieces and larger strategic pieces do not exhaust legal literature by any means, legal literature is more likely to exhaust the reader. Yet, it is important to start somewhere, and I have chosen to start with the tactical pieces of Prof. Grimmelmann in reference to the Proposed Settlement between Google and the Authors / Publishers. They will be cited as they are discussed.

[For a bibliography of G's work see:
http://james.grimmelmann.net/publications ].

As general background I shall interweave the strategic piece on copyright by Christopher Sprigman (UVA Law) "Reform(aliz)ing Copyright" StanLawRev Nov 2004, pp. 486-568.

[A bibliography of Prof. Sprigman's work can be found at his UVA web page:
http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/1211247 ].

The question will be: do the tactical pieces that try to insinuate a specific legal conflict between plaintiff and defendant in a certain direction have the full benefit of insight from the larger strategic pieces that show historical developments and show the intended, as well as unintended, unwanted, unhelpful, counter-productive manifestations of manifestly silly interpretations of the law.

Lawyers will be lawyers and are driven by two forces. First is the tactical kill. The enemy at the table adjacent has to be defeated at all costs. Losing cases is to be avoided. Defeats do not look good on the resume. Second is the reasoned analysis, the lengthy forays into the constitution, into past practices, into legislative history to describe what happened and what should have happened and what may yet happen. This work does not win cases, but it may help with academic ambitions. I shall try to maintain, based on some preponderance of the evidence in this case, that the desire to kill will win over the reasoned analysis. War is war; a lawyer has to do what a lawyer has to do.

In this field, selections have to be made and focus has to be applied to the arguments. Better to focus on two sets of opinion in a "part stands for the whole" strategy than to lose all focus in the warrens of self-serving but thoroughly plausible spin by the combatants.

Grimmelmann has the advantage that he is actively concerned with the question of Google; he appears to be sympathetic to the idea of the library, but he wants the settlement defeated, read: improved.

Sprigman gives us the advantage of an analysis of copyright problems in the years just before Google became an issue. Sprigman shows us a whole, healthy and happy world of copyright increasingly ravaged by the efforts of Congress. If what Sprigman recounts is even partially valid, one wonders why copyright lawyers don't wear hoods.

For my commentary, the focus on Profs. G and S will represent the whole through a small part. If you are read in this part of law, you may find the views of an amateur mildly amusing or not. If you are not read in the law, at least here are some sentences written by actual teachers of the law - a good place to start.

I could imagine, I think, that the legal eagles at Google probably were aware of Sprigman's work. The Google response to the problems that have crept into copyright because of Acts of Congress (78, 92, 98) in the last 3 decades is just the sort of radical approach that is needed to get some motion into the world of books. They must have concluded they could safely bet that with law this screwed up surely anything is possible.

Grimmelmann on Exclusivity: the Preliminaries

[Grimmelmann, James, The Amended Google Books Settlement is Still Exclusive (January 26, 2010). CPI Antitrust Journal, January 2010; NYLS Legal Studies Research Paper No. 09/10 #25. Available at SSRN: http://ssrn.com/abstract=1560242]

The first tactical piece under consideration here is a short essay on the question of exclusivity - a magic word with many nuances in legal world. The right of an author over a book is exclusive; yet, the settlement between Google and Authors / Publishers cannot appear to give Google exclusive rights - even if the authors or the publishers, the owners of the exclusive rights would settle them on Google - or have Google act as agent of their exclusivity - or whatever combination of secret words will do the trick. Google can be sued by the authors, but Google cannot settle with the authors. Why is that? Strange as it may seem, unlikely as it may appear, it may be dawning on me that the authors sued incorrectly. Or, to follow Judge Chin and Grimmelmann, there can be no settlement of the suit about scanning given Rule 23 yada yada.

They sued over snippets but cannot settle for the whole book - even though they are the recognized class of authors. Awfully sorry about that, bit of a knock into a cocked hat, will everyone please return to 2006 and sue for the right thing already, thats a good plaintiff. Or not sue at all, just sign a deal and start delivering books. Believe me, if orphans are the main problem then there is no problem (as you will see below), only a legalistically manufactured problem. This is just a suspicion; if the suspicion hardens I may have to stop writing and return to reading history.

The fact that even one would-be copier of books would be deterred from copying while Google would be allowed to copy, makes the settlement exclusive, which is bad, inescapably bad, by definition. This toad, as we shall see can fly amazingly well in legal world and had been doing loop-d-loops the chambers of Judge Chin, USDC (formerly). There have been counter-arguments to the exclusivity questions, which G. cites, but that does not interest me here; those arguments can be called up from note 2 [Grimmelmann, 2010, p. 2]. I am interested in G's rhetorical nuances.

In the year old analysis in the CPI Antitrust Journal [op. cit], written around the time of the final submissions to the NY USDC, Grimmelmann makes a complicated technical argument that the ASA, despite emendations is still "exclusive." "Exclusive" is obviously a magic word in this context. G's rhetoric does not inspire confidence to one who is used to non-visceral humanistic argumentation. He starts with a buggabear, generally the sign of a desperate man: "Many out-of-print books are so-called "orphan works": they're in copyright but their owners can't be found. If you or I start printing new copies of  these books, we'd be copyright infringers, subject to statutory damages of up to $150,000 a book - or even jail time."  [Grimmelmann, 2010, p. 2] I quote the second and third sentences of the piece.

I think this can be called a hypothetical. The law envisions penalties for certain actions and if "you or I" do this action, this is the penalty. It is an attempt to make the law seem real, a real and terrible force. It is one thing to mention the penalties; the rhetorical flair comes in imagining doing the crime and doing the time. The fact that the envisioned penalty is completely out of proportion to anything "you or I" would ever do is not really the issue, although it does lower the esteem with which the law is held among non-lawyers. Let say these sentences are a rhetorical topos; it makes lawyers feel important, they like to rattle chains and are happy at the thought there is a miscreant who printed books at the other end of the links.

The phrase "subject to" means that an author would have to be found to sue "you or I." Perhaps Microsoft could be persuaded to underwrite this effort as part of it Global philanthropy.

Notice the emphasis on printing. The idea is that verbatim copies are printed without the approval of the author, or better, behind the back of the author, thus depriving said author of revenue to feed an emaciated husband / wife and starving children. 150 large per book is too good for someone who would do that. You have to decide whether this caution really reflects what actual competitors of Google would do, or are we being reeled in by a hypothetical.

The background of the argument of exclusivity, pieced together, goes something like this: all known authors have either accepted the deal and are happy at the prospect of either managing their own prices or accepting Google's formula, or they have opted out of the deal and are not an issue. That really leaves only one issue: authors who have not been found; these are people who have written books after 1923 who are not listed in the extant lists of copyright holders. Their books are called "orphans." Neither they, nor their heirs have come forward. Why is that?

Quite a bit of mischief is done in the name of these authors. Grimmelmann just paints a stark picture of copyright infringement and lets the reader process the effect. Scenarios of exploitation are projected in the name of the unknown authors and their purported large number creates a subtext of grand larceny in the non-technical sense of larceny on a grand scale. Yet, the facts are different. 85% of the books published between 1923 and 1964 have fallen into the public domain since authors failed to renew their copyright. The reason why pre-1964 authors or their heirs have not come forward to opt out is that there is a letter in the estate papers informing them of an expiration of copyright. Actually, that gives the Library of Congress much too much credit in the management of copyright data. Better would be to say: there is no receipt of a renewed copyright and neither the authors nor the heirs (recipients of the smart gene) expect a book that sold 18 copies upon publication to become a runner twenty years later. People smart enough to publish a book can figure this out. What does that tell us about the difference between the perception of authors about their work and the perception of lawyers of the work of authors and the perception of lawmakers of their responsibility in this area.

Before I can continue with the rhetorical analysis of Grimmelmann's exclusivity argument - a purely tactical piece - I have to introduce Prof. Sprigman's strategic piece on copyright which emphasizes the role of formal reporting requirements. In almost hundred pages he makes the point that removing formal reporting has not contributed to our understanding of what is actually going on with copyright. This is my loose initial paraphrase which I will attempt to tighten up in the next installment.

The Order of Battle: First Skirmish Line

BNF - Paris

This takes us to the actual battle line on scanning library books which runs like this: Forget about it; it can't be done; it is illegal because of copyright. It is possible to have some fun with this argument.

By definition, legal arguments are self-serving interpretations of the law to further the ends of plaintiff and defendant, as the case may be. The only thing that makes this workable is that one side will win the other will crawl under the porch and lick its wounds. Motivation to play the game with virtuosity is high. We accept that although the wrong ones often win.

However, as a researcher who grew up in libraries and has worked in them (and in computer centers) for several decades, it is possible to achieve a perspective on electronic library books based on the common good as represented by electronic libraries. It is really an unashamed faith more than anything else, a faith in technologies, in the importance of libraries and in the electronic representation of sources, and even a faith that the law will eventually find its way down this path. Or will be pushed, pulled and kicked down this path.

It is possible to know with great certainty what is good for libraries and how technologies have contributed in the past and how they will continue to contribute in the future - Robert Darnton and the "we only work with vellum" crowd notwithstanding. [Note: there are influential voices who argue that "real" research can only be done with the actual physical artifacts. While this may be true for a small elite of scholarly superstars, the future lies in an opening of sources to a much wider group through electronic representation. The work is well underway. See: Batke, "Google Book Search and its Critics" 2010.]

From that perspective, the legal arguments seem thin, the judgement of the court seems arbitrary and the justification of the judge for the ruling seems contrived and manufactured in haste despite the time it took to produce. I am afraid from this perspective the work of Congress and the courts in the area of copyright appear ramshackle indeed. One can have some sympathy with the legal profession - with the law so completely tied up in illusions, half-truths, denial of fact and capitulation to cartoon figures ironed onto T-shirts, how can coherent arguments about our recent textual heritage be made with integrity and how can judgements worthy of respect be rendered? How can you tell I am not a lawyer?

There is a thorough, professional and respectful discussion of the March 2011 ruling and all the steps leading up to the ruling on Prof. Grimmelmann's (NYU Law) blog "Laboratorium." I have gained insight from his analyses and from the many comments and answers; I have also been humbled by the recognition of my fundamental ignorance of the workings of the law. I will be careful to document passages from his work and from others that have contributed to my evolving understanding.

I have also been surprised by a strong and rising undercurrent of anger welling up, when I read the matter of factness with which the quite ordinary pronouncements of the court are taken as "that's the way it is." It reminds me of being a kid again, long long ago, and dealing with the absolute rulings of the parental units. It is not really anger, now in my early dotage, but rather a loud and resounding: "You gotta be kidding!" I am not used to finality of a judgement, even the temporary finality that may be reversed.

I will look past the fact that Prof. G. used to be a programmer for Microsoft. I will also look past the fact that Microsoft funds part of his research. It means that he has first hand experience with the workings of monopoly. I do not see an obvious conflict playing out in his work. Yet, I am a waif in dangerous waters. Prof. G. speaks with enthusiasm of the electronic library as an achievement we - the technological collective - can be proud of. I am tempted to take a full swing at his pinata, but I fear the cluster bombs inside. Part of my fear comes from what I don't understand, the consequences of legal terms and maneuvers hidden from the layman. The book of legal openings is huge; work outside the book, you lose. That much I do understand - the big yellow signs: CAUTION MINEFIELD.

[Aside: written communication leads one into an imagined world. Our shared definitions of words provide some communality, but the author's view, represented in words, allows only a narrow bandwidth filled with noise. Ideological commonplaces fill in the gaps. These commonplaces can lead to acceptance or rejection. In any case, the author presents images from the imagination that reflect his or her view of the way things are. To understand what is written requires some little willingness. However, I claim no objectivity - you are getting the benefit of the ideas of a researcher who started scanning and indexing texts in the early 1980's and has been fascinated by the intellectual vistas this kind of work provides. The current incursion into the "law" is untypical for me, but it represents a growing conviction that it is necessary to start shouting to be heard above the media commonplaces.]

The Irrelevance of Copyright.

Before the recent work of Google with libraries and before establishment of the fact that it is possible to create a dataset of 12+ million library books, copyright for books was truly irrelevant. Historical treatments of the early history of copyright during the founding of the nation as well as the later developments up to the time after WWII, show that copyright was initially, and also continued into modernity to be irrelevant for the majority of books.

In the early days, pre-1800, copyright was thought too expensive (published newspaper notices for four weeks etc.) and requests for protection of copying were in the single digits percentage points of published materials. It almost seems as though the founding fathers or the pioneers for this kind of legislation in England had a profound empathy with text pirates and wrote legislation with a bias against granting easy protection. There was a substantial industry of verbatim copying of freshly published material. Jobs were on the line.

Just as the music industry seems to have written the current law, so it seems the text pirates wrote the original statutes in the early days of the Republic.

Before the knowledge explosion in our time, during our agrarian past on the outskirts of the civilized world, books were a coveted, precious resource for the mind, and I can imagine not everybody in Philadelphia or in Mount Vernon was particular where their set of Voltaire was printed. In any case, the lawmakers were certain that at some point, in a timely fashion, verbatim copying would be allowed.

Over time, the period of protection was doubled to 28 years, (1909) with an extension, as before, of the same period upon application. Yet the trend of ignoring copyright continued into the 1960's when renewal rates to gain a second 28 years reached around 15%. If you consider the large portion of works that were not copyrighted at all, the 15% renewal may only cover 1% of published material. More on this with citations below.

Today, when everything far and wide is copyrighted, we have become ensnared in a tangled web. Copyright, as a meaningful and widely enforced regulation has migrated to music, to films, graphics, and software. Copyright infringers are infringing in China and Russia and all over the world, and they make no distinction between copyrights and patents or trademarks. Intellectual property grows by the side of the road, as does everything else.

Copyright and families of patents have become the weapon of choice in arcane software wars as computer code is cloned for competing products and many nonsensical things are copyrighted to delay the competition.

[Aside: I have read only superficially in the patent wars and would like to restrict the discussion to library books. I feel that library books have been caught up in the war of litigation about things electronic that has raged for the last three decades. I will plead for their status as innocent and unintended victims.]

Curiously, nobody is pirating library books of the 70's or 80's. If you don't read Rowling or Grisham in Chinese, your textual pirate career will be dismal indeed. Granted, there was a high profile cases where it was decided one could not write sequels to best-sellers like "Gone with the Wind" - that briefly brought some air to the embers. A silly case, really. Generally, those wanting to piggy-back on publishing hits were forced to desist, which proved bad for extreme Harry Potter fans, but for the majority of authors and researchers and for the users of books in libraries, copyright is a non-issue.

Still, while we slept, in the 1990's Congress redid copyright with a vengeance, following the European model; it set the time limit to forever and a day and removed all reporting and renewal requirements. Anything that was fixed in a "medium" would hence forward be copyrighted as would this draft should I send it to my printer and post it on my refrigerator. Clearly the idea of administrating copyrights for millions of snatches of music, or graphics seemed daunting in the 90's when this legislation was developed, given the hash the Library of Congress had made of the data up to that time. Records in the music industry were even more chaotic. It seems less daunting today when everything will soon be on-line anyway.

Nonsensical, and extra-constitutional as these European (Berne Convention) rules might be, they were essentially irrelevant for out of print books since researchers worked in libraries (20 years ago) with physical artifacts under fair use, exempt from copyright; high volume money makers worth the trouble to protect are academically of marginal interest anyway, and verbatim copies were not really feasible in the 1990's.

Clearly, CTEA (Copyright Term Extension Act, 1998) had nothing to do with books. Books were simply collateral damage. Regrettable, but actually, no harm done. Congress was simply too disorganized and methodologically inept to come up with an appropriate scheme to regulate movies, music, software and T-shirt production when copyright would do just fine.

If one needed a book - two decades ago - one would look it up in Books in Print, later on Amazon or Abe and buy it; failing that, one would look it up on WorldCat or whatever it was called at the time and get it from a library, via Inter Library Loan, in two weeks. For the average researcher there were no viable opportunities for infringement; as there are none today, unless one wanted to publish a personal letter one had received from Pappa Hemingway or from Albert Schweitzer or if one wanted to use a picture of Mike Tyson's face since the rights to the black swirls belong to the tatooist, freely derived and copyrighted from Maori designs too old to be protected by copyright. I think his parents probably own the other side of Mike Tyson's face, or perhaps his dermatologist.

That does not mean that there are not authors associations who use their dues to flex legal muscle. Generally, compared to napster and DVD ripping, undergraduates Xeroxing books is paltry fare, even when the books are cut and fed to automatic copying and collating devices at Staples. At 10 cents the b/w page plus binding, it is hard to compete with the book store. The Xeroxing phenomenon, which has declined significantly in recent years with the widespread licensing of electronic journals is not making a serious dent in the publishing industry. Xeroxing library books or text books is a small cottage industry on the level of shoplifting. It represents the cost of doing business in a mass market. For out of print books it represent defensible fair use practice. Much of Xeroxing also represents bad study or research habits and is a waste of time and money which may dawn on the Xeroxers when they realize that Xeroxing does not equal reading. Most of what is Xeroxed is eventually discarded and does not find its way into the market. Yet Xeroxing has also been a valuable aid to research although it should gradually fade from the scene as pdf's become available on tablets and laptops and personal printing becomes optional as well as much more inexpensive.

It was the work of Google, starting in 2004 that brought the copyright lawyers to the ramparts about books and started what now has become 6 years of litigation, negotiation and attempted settlement. Alas, the Judge blinked, he nixed the fix that would have revived the living dead, and the problem of text trapped in printed ink on paper will continue for a while. Heaven help us if it were to turn out that the messes created by Congress could be fixed simply by highly motivated and concerted action by the geeks in California; the pillars of democratic government would surely sway and crack.

So much for the first of several ventings of outrage at what has been done to the concept of intellectual property and a sensible balancing of the right of authors with the rights of the public by the Jubilation T. Cornpones on Capitol Hill.

In the next installment I plan to delve into some actual legal arguments (Grimmelmann and Sprigman) and start documenting the sources for the discussion. I like to think of it as heading into the jungle.

Library Languishes Longer - Preliminary Observations

British Museum - Reading Room

I would like to take a closer look at Judge Chin's Google ruling about the scanning of library books (Authors Guild et al. vs. Google Inc., March 22, 2011). To kill the suspense: Settlement denied - not reasonable, not adequate, not fair. [Note: I have chosen not to add explanatory notes. Please use Google to clarify unfamiliar references.]

My discussion will join this protracted legal event in what should be the final scenes of the last act. What happened before is as interesting as the play by play of last year's super bowl. What is interesting now is to examine the legal positions and the arguments as they have developed into the present: from the delivery of snippets to justify scanning (2006) into the attempt (2009) to settle and start putting library books on screens to the denial of the settlement (2011).

There are some voices heard that claim Judge Chin's ruling is a blueprint for a renegotiation of details of the settlement with the goal of eventual approval in the near term. There are other voices that maintain that Congress will have to act, a prospect that does not make me jump for joy.

I am not in a position to place a safe bet one way or the other; however, I would like to make a case for the electronic delivery of library books and to vent some outrage at the convoluted legal proceeding, starting with the evolution of copyright to its present state as guardian of low-end entertainment interests. I plan to continue on with the rules of legal proceedings which make the denial a barely plausible, strangely brief, legally safe but thoroughly unhelpful balance of a variety of interests competing with the public good. The public good, represented by 12 million digital library books, resting in its manifest obviousness, can receive only cursory consideration from the Honorable Denny Chin too busy placating sharks smelling money in the water.

One has the impression that there are really two proceedings. There is the District Court and there is the court of public opinion. The Judges of the District Court are thoroughly professional and independent and are only rarely impeached and removed. The courts are heavy with property disputes and seem to default to that perspective. The assumptions and procedures are designed to mediate between cunning and self-serving chislers exploiting badly conceived and written law and anointing the least unworthy. The Honorable Judges are important players in the game, and at any moment, without any tremendous legal or intellectual skill and effort, they can be game changers. Concerning Intellectual Property Law, the rules of the game have been set by a series of wish lists submitted for a swift rubber stamp to Congress by the entertainment industry over the last two decades. One has to wonder what factors move a decision one way or the other, given the swollen arguments, especially since all scenarios play out in the public court.

There are so many potential factors that plausible rulings could cover a wide spectrum, in this case, from acceptance of the settlement (as is) to a rejection (as is) to any number of interesting novelties in the game of copyright and old books about which one can only wonder. This actual ruling is merely a thumbs down based on factors agglomerated in the judge's chambers over a specific and limited period of time. One always hopes for due deliberation and insight, one hopes the ruling is not just manufactured under pressure, one does not dare suspect a lack of obvious clues, one dares not hope for brilliance or vision, and one hopes the ruling is not just a band-aid on a sore point of the law. Copyright is clearly a sore point, made worse by a series of congressional surgeries over the last several decades, and there is no indication that Judge Chin's ruling is much more than a "take two aspirin and call the nurse if you still feel bad in the morning."

The court of public opinion does believe in copyright. Nobody has really spent much time thinking about it, but generally, people believe in the rights of authors over their works. There is no great understanding of potential difference between a copyrighted book of history or literary criticism and a copyrighted song by Sting or a potboiler by Scott Turow. There is no great awareness of the history of protecting books from copying, nor the notion that one would want to release them into the public domain in a timely fashion. The timely move to the public domain, incidentally, is one of the many puzzling and obviously nonsensical things, to hear the lawyers talk, that the original language of the Constitution makes explicit. Contrary to the time of the founding persons, today there is no great appreciation for the agenda of scholars and libraries in gaining or delivering efficient access to research materials, e.g. library books. In the collective herd-mind, copyright functions on the level of chest beating, a loud unruly chorus in favor. The herd can also be counted on to be convinced that corporations are in it for the money - only for the money - and they are against monopolies even if there is no clear understanding what that might be in this case. Google is a fast growing success story so it must be a monopoly. All these factors are lumped into the barely legal concept of "concern."

There is a small and vocal minority, to which I count myself, that is taken by the prospect of a digital library available world wide. This group on the fringe sees no actual appropriation of property of monetary value and no legions of disenfranchised authors and publishers in penury. But the court of public opinion is not unlike the Roman Colosseum, vocal minorities do not affect a thumbs down. Let the digital library die, long live the rights of orphans!

The truth value in the court of public lies more in repetition than in analysis. Editors of the popular media see no benefit in contrarian stances. The value of intellectual property is unquestioned; the law is the law. Investigative reporters are, of course, skeptical and suspicious by nature when it suits them. If a story is too convenient, too pretty, too pat, they will, on occasion, beat the bushes to see what may be hiding in the Honeysuckle.

It would be a big coup if someone were to happen on the suspicion that all the assumptions about intellectual property were really a scam, and that Thomas Jefferson would have been hopping mad if he had suspected that his Congress would eventually mutate into a rubber stamp for the music industry and take books along into effectively unlimited copyright. Best not to live past one's time.

Copyright as amended in 1998 is really a unfortunate hack job. What if copyright has nothing really to do with books anymore? What if the District Court got a high profile case about books, with real issues about building institutions for the public good and with sound foundations in the legal history of libraries, the public domain and educational priorities, and what if the court had at its disposal only laws dealing with five minute segments of amplified sounds, or DVD's or T-shirt vendors, artifacts of entertainment with no compelling broad educational uses? What is a District Court to do? Well, twenty pages of technicalities, a couple of sob stories and a big finger pointing towards Capitol Hill will do just fine.

What if authors of books are generally quite relaxed about their rights - so relaxed, in fact, that a majority in the range of 85% would not lift a finger to renew their copyright even under penalty (or benefit) of their work going into the public domain in 28 years as per Copyright Act of 1909. What if authors of books are so relaxed to the point of indifference that they would not lift a finger in protest were nonsensical rights shoved down their unaware throats as per Copyright Act of 1992.

What sort of investigative journalism would it take to get an exclusive scoop on the deep, dark, hidden secrets of copyright and what has happened to it at the end of the 20th Century. Who would read it? Who would publish it?

It is tedious, boring, self-defeating and unprofitable to challenge the court of public opinion. The word or concept "copyright" has good recognition value; it has positive focus group numbers; it has universally positive associations. Who wants to get into the details of the difference between books and music and movies and graphics? Who wants to get into the difference between books on a library shelf, books in a book store, on Amazon, or books marketed on a CD or as a digital stream, or books delivered as a pdf? Best to schedule panel discussions at professionals conference, keep the drums beating and keep the details obscured. Bravo the Authors Association, the Guild of Potboilers.

It is an enervating, thoroughly unbelievable story of what has happened to copyright since 1976, culminating in the "Copyright Term Extension Act of 1998." (Dozens of attempts to fix 'this and that' with copyright have been tabled in all Congresses since then, a list is available on Wiki filed under "pending copyright legislation" - a lame joke by the wiki editors at best.) The literature on the subject is extensive and a bit overwhelming and comical, especially with choice topics like intergenerational justice applied to copyright. The relevant sources are of course about the law. It is about property rights. But it is also about books, or it used to be about books. In its view of the large category of books, which are generally referred to in "and-phrases" with music, the legal literature is full of errors of perception, conveniently inappropriate twisting of facts and the unreflected acceptance of platitudes about property rights that have nothing to do with the books sitting on library shelves or with the intention of authors for a wide audience or with the legitimate needs of academic researchers. It would be a big scoop were it not so completely irrelevant - until, that is, along comes Google(!) and the technical breakthrough of large scale scanning. On the scales of justice, the ironed on decal on a T-shirt weighs more than a rare out of print history of Burbank published in the 1960's and available in only 16 libraries in the continental United States.

Most startling and absurd is the role of libraries as a storage depot for out of print intellectual property. One must assume that journalism majors, now graduated and now investigating, spent more time with the present rendered in video loops than with the versions of the past ranged on library shelves - thoroughly understandable. That would explain why the New York Times writer announcing Judge Chin's ruling leads with the line: "Deal runs afoul a 300 year old principle, copyright." In this essay we shall watch incredulously as all manner commentators think it enough to wave the copyright flag and dismiss an electronic library of 12 million on-line books.

Have the journalism majors not investigated outside the reserve reading room of the undergraduate library? Most probably they have not.

That would explain why everyone bows before copyright, but only a very few question the intrinsic value of a copyright that is out of print. Of course, everything would be best if judges are clearly correct in the sense of being up to the task of being right in the larger non-legal sense, and their published opinions were universally applauded, today and in 56 years. There have been such opinions.

Unfortunately, it does not always work that way. Congress passes acts, lawyers sue and defend cases and judges issue opinions which are tentative at best. In an undertaking as massive as building an electronic library of all books in the tens of millions, a ruling of some twenty pages of actual text, for which all have waited for over a year, can be but a brief pause in the development.

I tend to go with Dickens' assessment of the law, pardon the pun. (No need to incite with the actual quote which can be Googled - Dickens, Oliver Twist, law, Mr. Bumble - btw. the quote seems to have originated in the 17c.). Of course Dickens is referring to the stubbornness of the law rather than just issuing a general invective in the law's direction. Of course he is speaking of the English law of the 19c. Yet in rallying around the concept of "concern" (in plural form), the opponents have brought some of that arbitrary stubbornness in the face of new horizons into the USDC of today. Who will pull and push the law down the road toward electronic research materials?

In following a case, one can examine the texts put out by the court of public opinion, one can examine the legal arguments, the papers and briefs filed with the case. One can examine the legal literature accompanying the litigation. Finally, a ruling and a published opinion emerges for analysis. One person has been appointed to pick and choose and then to decide; at least half the stakeholders are disappointed and incredulous. The cheering of the victors cannot deter the advocates of the electronic library from examining the road not taken. The advocates for the electronic library can be 'asses' too and balk at going down the road of locking away out of print books. If the press declines investigation, the future will wonder about the collective neural outages in newsrooms in the Spring of 2011.

Of course, journalist are not to blame except in the sense of not rising to an appropriate level of analysis in this case. The discussion is thus ceded to the lawyers for who the procedures of the law come first, the maintenance of legal principles of indistinct provenance comes second. The public good embodied in electronic library books is a distant four hundred and third on the list of competing interests. This represents, in short, my personal reading of Judge Chin's ruling, with all due respect.

Yet here is a chance to compare the perception of realities: on one hand, the reality of libraries, researchers and indexing companies - on the other hand, the perception of the law of its function to keep order in disputes about property. The discussion about library books has been dragged off into a dispute about property. In this case, one can see a defense of property rights for things that have no monetary value. One can also see a great deal of ballyhoo about potential victims that will turn out to have been figments of the imagination. One can see Congress giving protection in all directions whether it makes sense or not. One can see protection of rights morph into burdens and uncompensated social costs. And finally, there is a corporation known for innovation, for taking on the new technological challenges that are evolving in knowledge representation into logical and necessary action - I think courageously.

There will be a competing view of the role of libraries playing out in the court of opinion. There are those who would limit libraries to delivering electronic catalog entries and the storage and circulation of physical books. To be fair, this view of libraries also sets great stock in the expertise of highly trained staff to aid research. There is no argument about the latter; the staff of professional librarians will be in high demand in all scenarios.

The question arises whether the electronic catalog, magnificent as it is, represents the end of history, the end of the line for bibliographic development, culminating in a bed of laurels and a bottomless bucket of champagne; or, if work will continue along the lines of several dozen libraries around the world who have started digitizing (and indexing) their collections, page by page, with the help and support of Google, but also on their own. In addition to an entry in the OCLC catalog WorldCat, their books will be part of the great index built by Google. The spectacular difference compared to the catalog is that the index will find books based on a specific query, the index will calculate a measure of significance and will open the book to the relevant page with bookmarks to other potentially significant pages. The prospect of being able to triangulate text passages touching specific topics through query terms is truly exciting.

Strange as it may seem, there are voices arrayed against the idea of the index. The arguments are varied and cover many points. There are the arguments based on faulty execution by Google and the libraries which ignore the inevitability that the system will improve; billions of OCR errors will be fixed, millions of metadata errors will be corrected and the index will become ever better. There is a good bit of belly-aching going on among the extremely learned who fear some dislocations in ivory towers, but we should not forget that education is a project for the huddled masses. There is the "we only read whole books" crowd. Do you also read sets of volumes? Good for you. Must be hard to do research. There is also the "we only read vellum crowd." There are the anti-business forces who fantasize about technological capabilities and the will, largely undemonstrated, to make something happen with public sector resources (plentiful as they are). And there are those who just hate the private sector, business in general and specific companies most especially.

There are the arguments that this project will lead to a monopoly of information for Google. This is a sort of argument of last resort. At present just a relatively few libraries have a great collection of books; nobody thinks of the Library of Congress as a monopoly. Yet the elite researchers working at elite libraries do have a monopoly-like access to research materials, true, guilty as charged. The saving grace is that decade old library books are hardly the staff of life for society in general; library books will not fuel your car. There is no strategic reserve of library books to be tapped in times of national crisis. It would be better to think of libraries as the storage of last resort for books that have lost commercial value. The current restrictions of access to library books is not due to monopolistic practices, but to the logistics of dealing with physical objects. To interpret widening access with monopolistic practices seems strange to a non-lawyer.

To get a book from the NYPL you have to go there, walk up the steps, request the book and read it in the reading room. How many of the 10 million people in the greater metropolitan area can do that on a single day? Multiply that by the days the library is open and throw away the repeat users. The number will be small. The State of North Carolina has two libraries of medium greatness; what percentage of the population has access? What is the counterpart to the concept of monopoly that restrains access simply and innocently because of the limits of the physical logistics? It is called higher education. It is called the research library. In fact, only roughly 15,000 graduate students, many from out of state, have the benefit of the "great" part of the Duke and UNC libraries.

While libraries may have cornered the market on library books, the privileged users are not engaged in fantastically lucrative pursuits (exceptions noted) but rather are following modest academic careers. Novice academics could not be expected to pay even one dollar for every book they have to look through on the way to a PhD. Nor for that matter should independent scholars who have no institutional affiliation pay for library books.

At present, if you need a book - you have to find a library - preferable a research library within a 100 mile radius. Not the optimal state of affairs. The pooling of textual resources, the books, and the delivery of electronic copies to the screen would open access. It would merely make the existing monopoly which restrains access to a few  - if that is what it is - more efficient and less of a monopoly. This already grants the anti's an unnecessary concession: it is not possible to have a monopoly of something that has no intrinsic commercial value. Further down, there will have to be a large section dealing with the "concern" or the "concerns" of Judge Chin about the role of Google which should really have been admiration for the index and an acceptance of the settlement. If oil had been sitting on shelves like library books waiting to be read in the 19th century there would have been no monopoly of oil. No money will be made with library books on a scale that would point to monopoly. Yet the social costs of restricting access, or better, the costs of not using the best available technologies to widen access, are huge.

One final word on the first installment: Let us not forget that Google's market dominance, in fact, is due to several factors to quote Grimmelmann quoting the law, "superior product, business acumen, [...] historic accident" - three criteria for legal and legitimate market dominance. Grimmelmann does not believe these criteria apply to Google. Read it yourself; I disagree.

[James Grimmelmann (New York Law School), "The Amended Google Books Settlement Is Still Exclusive," CPI Antitrust Journal, January 2010 - N.B. enter verbatim phrases of quotations into a Google window, w/ quote marks, to raise the original source quickly. Above -  "superior product, business acumen" Grimmelmann - will bring up the CPI piece.]

Grimmelmann would like to have us think that the the ASA would give Google market dominance, not the actual three criteria. Grimmelmann's argument that Judge Chin would have given Google an advantage in the market of "orphan books" by the stroke of the pen makes sense only to a speed reader who does not examine the argument in detail. I hope to work towards a closer examination of this and similar arguments of shallow plausibility. The nature of copyright and the importance (lack of importance actually) of the copyright of "orphans" will be introduced in the second installment.