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| NB Vienna, Grand Hall |
In my limited view, and certainly pertaining in this ruling, legal reasoning is primarily tactical. The law looks at a specific question and adjudicates the points. Thus one might argue int he vein of Grimmelmann, my personal paraphrase of 9 points:
1. The work of Google is great,
2. it benefits humanity,
3. in the period 1909 to 1964 only 15 percent of copyright holders bothered to renew their copyright which was a mandatory step after 24 years, required to keep their work from automatically falling into the public domain,
3a. one can imagine that of the renewers, the majority would be big sellers, Hemingway, Steinbeck, Albert Schweitzer, Kerouac, Salinger etc., who would opt out of the settlement or manage their own pricing [449.95 for a reprint of "Catcher in the Rye],
4. at the beginning of copyright, of the 16,000 publications between 1790 and 1799, only 500 bothered to seek federal copyright protection,
5. the figures in #3 and #4 could be extrapolated to the time after 1964 when the 1992 Act made attaining copyright like falling off a log and lying there for 70 years after your death,
6. it might appear that only lawyers, certainly not authors and under no circumstance anyway, publishers, have an interest in out-of-print orphans, but since all other bases are covered fairly, let me drag out this red herring of last resort, I am, after all Professor of the Law,
7. libraries and print-on-demand outfits are printing thousands of public domain scans and littering abe.com and amazon.com with their offerings,
8. but finally directly @ the DC Judge, if you ignore my extremely convoluted and technical reading of exclusivity which may apply to less than one percent of holders of rights [class members] that have produced no revenue for decades anyway, your colleagues on the bench will give you the moniker "the Exclusive of the 2nd Court of Appeals."
That ladies and gentlemen is a tactical ploy worthy of General Patton. Hey, don't kid yourself, exclusivity is exclusivity.
Strategic questions can enter only after the tactical question has been decided and the venue for the next tactical encounter is selected. The arguments are tactical, and it is a mistake or a sign of inexperience with the law when strategic concerns or broad strategic issues enter a legal question. "Get outta here!" is not an option.
This works for the law since there are winners and losers, often with high stakes on the table to be won or lost in a tactical encounter. The arguments for a specific judgement cannot be "yes butted" as is always the case with intellectual discussions. When rolling the die and losing with the count of 8, it does not help to say: "Yes, but I could have rolled a 7 and won." That may be true, but the stake is raked to the winner. The loser can only plot another tactical showdown. Of course, the loser can replay the roll of the die to win back the stakes previously lost. This requires lawyers, deep pockets and patience. As a non-specialist, one can only bay at the moon.
Intellectual arguments can easily switch between the tactical and the strategic. The tactical is actually unimportant since it is impossible to declare clear winners. One may happen to lose some tactical point; yet, it is easy to withdraw temporarily for a breath or two and reengage the same point from a slightly different perspective or indeed just repeat the point verbatim with perhaps more waving of the arms. All this can happen in the space of an hour. Hence the source of the pointlessness of much of intellectual discussion. They are primarily practice encounters that can identify obvious weak points or rhetorical winners and prepare for an argument that would actually count, although I can't think of anything remotely like that right now.
The tactical arguments on the intellectual side are really pretend encounters. Debating Societies illustrate the point. Opponents of a question will switch sides since it is not the merit of the question, but the virtuosity of the argumentation that is being judged. Arguments from conviction are thought to be bad form. In normal unprofessional oral arguments [discussions] the same points are treated round after round since the actual agenda is a strategic position and tactical defeats are not accepted.
One exception is "argument from authority;" in its modern version, one party can say: "This certificate on the wall and the brass plate on my door show that I am a professor of this and that while you are a student of this and that." In that manner tactical questions can be decided; it is really an imprecise tool going by various names; one of them is "teaching." That such decisions hold in the long run is not guaranteed.
I maintain that much of intellectual discussion is strategic, an attempt to defeat or defend larger questions or to defend a personal position that may not even have risen to conscious awareness. There are myriad ways to a larger questions and an infinite number of tactical skirmishes. The certainty of the competing positions is not easily shaken; both positions will survive intact unless extraordinary conditions pertain - brain aneurysm or the second coming.
The most legitimate forum for intellectual "discussions" is the written form in books, articles and most recently in electronic postings [blogs]. Books and articles are old genres. In books the accumulation of sentence requires a logical structure that can be followed. Anything over 80 pages will have to have a structure that can be played out to 200 pages. Often an additional 120 pages or more are not really helpful. Yet, complete randomness is not actually possible in written communication - there is some recognizable state of affairs in any large accumulation of sentences.
Generally speaking, the arguments take the form of a series of tactical encounters between the author and a straw person, an imagined other, a listener, that are won by the author on the way to the larger point. These encounters have a consistent structure, a description of some state of affairs is given from which inevitable conclusions are drawn. Of course written thought generally takes place in the imagination and there is no requirement of verifiable reality; it is a world of self-serving illustrations, anecdotes picked arbitrarily, abstraction, speculation, fantasy, illusion and even delusion. Of course there are also the "great ones" - authors who can set the intellectual agenda for their time. However, even the ordinary can find readers; through the power of language, the power of rhetorical devices, the power of allusions to commonplaces and the power of repetition, it is possible to program readers to accept the points proffered. However, in books there is a great deal of unfocused leeway that would not work in the score-keeping attached to legal encounters.
Books do, however, exhibit patterns of words and phrases. This allows the thematic analysis of a single text as well as the juxtaposition of birds of a feather. Texts are the closest we can come to arresting time and seeing the past through the eyes of the authors. Not all books are worth reading, and not all eyes can make sense of what they see, nor can all brains communicate to the fingers. The hard line is that there are only a few dozen books worth reading; there are even harder lines. I tend to be hopeful. If the discipline of data-mining approaches it's potential, it may be possible to extract meaning, or at least lexical patterns that can be associated with meaning, from books without going through the entire narrative and every twist and turn of a meandering mind. There are limits of how much of that one can do in a lifetime.
There are also articles, a short genre that is ideal for picking up specific information. Lectures used to count, back when one would still "read papers." Today that form of communication, which was often accompanied by a question period has come into disrepute. On one hand it is logistically easier just to read the text or watch a you-tube video, on the other hand, much lecturing these days is either practiced improvisation aided by reading off power point slides or just straight ad-libbing. The genre has become debased by too many conferences and too many panel discussions. In books and articles, there are gatekeepers that insure a certain level of quality; the gatekeepers also tend to take on a curatorial function that limits what is presented to agendas of publishing fashion.
The fantastic growth of electronic communication and the resulting low barriers to presenting ideas in written form open vast new vistas. I am primarily interested in the blog, but also in the structural innovations inherent in twitter.
Blogs are really articles without the gate-keeping function of an editorial process. From the editors of first line journals such as Journal of the History of Ideas, for example, we hear a good deal of gnashing of teeth and moaning on how hard it is to fix submissions until they are acceptable in view of the standards of the JHI. The thought is that each and every field and sub-field down to the most narrow specialization has experts at the ready to peer review publications and offer suggestions till they pass muster. That certainly has been the practice since knowledge became professional sometime around the end of the 19th c. Each cohort of students working on advanced degrees has the illusion that systematic progress is being made. In actuality, the discussion in non-scientific fields is quite chaotic and professional organizations cannot really give meaningful direction.
The knowledge professions still live from their positivistic past and from the unalterable fact that each cohort has to go though elaborate initiation into the material to be studied. Primary sources need be assimilated, commentary needs be digested and strategies for contributing to the discussion need be evolved. There is a whole lot of antiquarianism going on. Books and articles will continue to be produced, even if the suspicion arises that scholars long dead might have had a better grasp of the past than we do. Yet I am fascinated by the possibilities of blogs and twitter.
It may seem preposterous to suggest that blogs are analogous to refereed articles or that a series of blog postings may approach a book; yet, authors do try things out in blogs. It may be even more preposterous to suggest that tweets have any discursive function at all. That will be my point, however.
Blogs are refereed to the point that they elicit responses. It is easy to gage the level of response. Essentially it is a written discussion. In the case of the Grimmelmann blog it is hard to imagine a more competent level of commentary. It turns out that professionals in may fields are turning to the blog to reach a target audience more quickly with an actual give and take. Blogs were first used in student teacher interactions.
One should use a distinction between the "blog original," the blog piece as posted by the blog owner and the "secondary blog traffic" in response to the posting. The original may well be a carefully considered and crafted piece of text close to what one would read in a journal article. In the case of Grimmelmann, he is fortunate that the followers of his postings also maintain a high level of commentary.
Yet there are uncounted examples where blog responses are volleys from the hip, fired off primarily for the noise value. While these postings are hard to read as are the overtly abusive ones, there is non-the-less a written record of an anthropological event - one that can be analyzed when our data-mining techniques get better.
Not too long ago, letters to the editor or published reviews were the only way a response could be registered. Today it is possible to append a reaction to a piece in real time while still reading. This can take the form of "you stink" or "you great" - to more substantial refutations or substantiations. Essentially, it is a thumbs up or down - a real time vote on the tactical success of the piece, a court of opinion.
It is instructive to take S. Brin's 2008 NYT op-ed piece as an example. In a short few sentences Brin lays out the arguments for Google Books. [cite] The points are easily summarized - index and preservation.
What follows are 90 blog-like comments that explore the entire landscape of opinion. At first look, it seems to illustrate the polarization on the issue. Yet it is quite easy to classify the responses and plot points of agreement and disagreement. Despite some very badly written text, some borderline abusive text, much repetition and pointless arguments among the commenters - one cannot deny that the op-ed piece was enriched by the flood of instant commentary.
In my own work of writing about Google and large scale scanning, my interest is primarily to explore ideas. I find that writing is more binding than interior monologue. The overhead of producing a book is simply not energy effectively spent without extensive marketing. Yet there is something unseemly about marketing what are essentially academic judgements. The writer makes attempts at clarity on an issue. It is hard to know what one might or should expect from readers or how reader behavior should be modified through marketing. There is the option of exerting "authority."
Of course, the comprehensive index does change the playing field. A large percentage of the current 12 million scans have not been read for decades. It may be possible that the index may throw up citations that resonate although neither the name of the author nor the reputation of the press brought forth a wide dissemination of the original. Blogs are also indexed with the added advantage that lexical items are not obscured through OCR errors. [Google this before continuing unless you know what OCR is]. Researchers of the future will have artificial intelligence routines to pick through the research of the past. The marketing of books and academic ideas may become less legitimate.
Blogs also have the advantage that one can throw out snatches in test mode and gather responses, should there be any, and gather a readership, should one materialize. Blog readers are a more omnivorous class of readers since the barriers of acquiring a book and working through the complicated rhetorical structures of an involved narrative fall away. Blogging is a good way to get things off one's desk.
