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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.
