Response to von Lohmann

Fred von Lohmann of EFF stopped by and left a comment that's worth addressing directly:

"... I'm not quite that pessimistic. I think the general approach of the settlement -- a collecting society to solve the problem of getting permission for all the orphan works, along with an opt out right -- is the right one. At the same time, I agree that we need to take steps to reduce the "Google monopoly over books" risk.

I think legislation to supplement (not replace) the settlement might be the answer. This would not be legislation over the objections of copyright industries (which I agree is hard to push through a Congress compromised by years of disinformation and campaign contributions), but rather with support from copyright industries against Google. In fact, I think Google might not object, either, since I don't think monopoly is really their goal here. I suspect Google would be happy to rely on its engineering skill and head start to fend off most rivals.

We should all be thinking about how legislation might work as an adjunct to the settlement agreement. I know I am."

I confess that I simply haven't thought very deeply about Where We Go From Here; it's good to know that EFF is concerned about the settlement's effects, and I encourage everyone to support them in their efforts: donate here! Von Lohmann and EFF have done more for the fight to restrain the digital enclosure movement than I could in dozens of lifetimes, and I'm a bit ashamed that my post could be read as implying that efforts at reform, whether legislative or judicial, are hopeless. I don't believe that at all: if nothing else, EFF and others help make things less bad than they otherwise would be, and that's nothing to sneeze at.

That said, I don't think "a collecting society to solve the problem of getting permission for all the orphan works, along with an opt-out right" is the right approach; I think abolishing copyright is the right approach. So there's some disagreement right there. Of course, even if von Lohmann agreed with me about what would be optimal, it would be irresponsible for him to say so: EFF, like Creative Commons, gains credibility in part because of the moderation of its claims. A movement needs to have radicals, but its litigation arm needs to win cases and persuade elites. Even when the goals are shared by all, radicals and reformers will still (reasonably) disagree about What Is To Be Done.

(Disagreement isn't rationally required, of course; each could see the other's role as complementary. But I suspect that this is psychologically unlikely; radicals tend to feel that anything short of radicalism risks complicity, and I imagine few would be pleased by certain knowledge that their goals would only be achieved in centuries, and by the hands of that time's gradualists. Nor is it easy on the psyche to be an extremist committed to moderate reforms; see this nice article by Sheri Berman on the splits in the early 20th century Left.)

But I digress. My worry, as a copyright abolitionist, is not so much that von Lohmann is wrong as that he is right: the new institutions for license collection and copyright registration will embed copyright within the foundations of the 21st century's knowledge ecology, just as the content industries are attempting to do for consumer electronics. This is what depresses me: restrictions becoming increasingly invisible, with that very invisibility making it harder to imagine anything different. I worry about barriers to entry that are small enough to avoid political backlash, but large enough to deter hard-to-monetize innovation. I worry about the world's books reserved for those lucky enough to have already fallen in love with text, those willing to jump through some hoops to get at it (say, by waiting for their library's single free Google Book Terminal). I worry that finding a "reasonable" solution will inevitably lead to the triumph of administrative and managerial imperatives, with the public represented, if at all, as simply a mass of consumers. And I worry that this representation will increasingly become reality.

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Publishing, Copyright, Google

I'll start with a confession: I was wrong about the Google Books Project. And my wrongness is underscored by just how right Siva Vaidhyanathan--whose worries I dismissed at the time as contrarian library-fetishization--was. It's true that a happy ending could still emerge, but if it does, it's likely to be in spite of Google, and in the teeth of its opposition. My mistake is perhaps instructive, because it exemplifies some cognitive biases that bedevil all of us: wishful thinking, overvaluing the causal impact of character traits (and individual agency, generally) relative to structural tendencies, and an unfortunate tendency to take sides--if only affectively, subconsciously identifying one's own interests with those of one party or another--when powerful entities clash.

A quick summary for those who aren't obsessed with this stuff: Google partnered with some libraries to scan a zillion books, some public domain but most out-of-print but still in copyright (generally, stuff published after 1922), insisting that this was fair use (and thus legal) because copyright holders could opt-out, and only snippets would be shown of in-print books. Unsurprisingly, various authors' and publishers' rights organizations sued. I was hoping for a big, triumphant showdown: I thought that Google (and perhaps only Google), with its ridiculously deep pockets, its "Don't Be Evil" motto, and its justly-renowned lead copyright counsel William Patry, possessed the means, motive, and expertise to bring forth the 21st century's Betamax Case. A big win for Google would safeguard the Book Project, and that alone would be great, but I cared mainly about doctrine: a high profile victory for fair use (and the doctrinal emphasis on use rather than copying this would entail) would give legal protection to innovators everywhere.

Well, not so much. Google settled, and why wouldn't they? Google's mission is to make cool software and money, not to fix copyright law. The settlement places some minor constraints on the Book Project, true; I'm sure some engineers are annoyed. But that's a small price to pay for an effective legal monopoly over the world's digital library. Even if Google weren't one of the only companies with the cash to take a lawsuit like this to the Supreme Court, it's no longer possible for any of the others to win. Why? Because any potential competitor would find themselves caught by the circular reasoning of the Coursepack cases: if someone else (Google) is paying a license fee, it means there's a market for license fees, which means your use is a commercial one, which means your case for fair use is much weaker.

So, what now? I wish I knew. Some libraries seem to be fighting against this; we'll see if that comes to anything. I suspect we're at the point where only a statute will do; but Congress' record on copyright is terrible, and terribly predictable. Change, here, is just not something I can believe in: the inherent diffuse-benefits, concentrated-costs collective action logic will only be exacerbated by the inevitable cries of "Look out, socialism!" and "Respect international law!" that any attempt to scale back copyright is sure to provoke. I suppose that if Google gets a little too greedy in its pricing and access policies, the resulting backlash might scour away some bad law. But let's be honest: regulation as a quasi-public entity is at least twice as likely. Even the best (realistic) case, a statutory fee schedule, represents a massive and needless giveaway, and has insidious consolidation effects besides.

I blamed my optimism on human nature, but really, it's not like I wasn't warned. Here's what Bill Patry himself--the heroic knight in my imagined good-vs.-evil showdown--said in his farewell to the blogosphere:

Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

More entertainment blogging

Brief notes:

* China Mieville's "Looking for Jake" is simply brilliant. I'm generally not a huge fan of short stories--when I want escapism, I want to really escape, and that takes word count!--but the format really plays to Mieville's strengths, chief among which is mood-setting. Even that click-to-feed-the-hungry website becomes strange and sinister in his hands. Plus, it includes this, which (no offense to Cory Doctorow) is at the moment my very favorite anti-IPR story.

* David Marusek's Counting Heads is also good, though more in a "gee-whiz" way than a sucking-you-in way. Wonderfully realized vision of the future; less wonderfully plotted story.