Hellzapoppin' in the world of intellectual property rights these days. Lawsuits, corporate flim-flamming, the claims of far-sighted academics and developers, furious authors and artists and the conflicting demands of a sprawling Internet culture have created a gargantuan, multi-directional tug-of-war that will inevitably affect what and how we will be able to read online in the future. Recent developments indicate, amazingly, that there are grounds for hope that the public will in time benefit from the results of this epic tussle.
In 2002, Google began scanning the world's 130 million or so books in preparation for the "secret 'books' project" that eventually became Google Books. In 2004, they began offering access to these scans, displaying the irritatingly-named "snippets" of books in their search results. And in no time at all, they were getting sued by the Authors Guild and the Association of American Publishers for copyright infringement. These lawsuits, plus two more that were filed subsequently against Google, resulted in a six-year rollercoaster ride that, like all good roller coasters, exhilarated, terrified and rattled all the participants, and ended by thumping their quaking bods to a halt, last March, in very nearly the same place from which they'd started out. But during that time the world had changed, and an altogether new way of bringing printed books into the digital commons had emerged. Enter the nonprofit alternative for bringing the world's books online for all readers: the newly-funded Digital Public Library of America.
MEUM ET TUUM
So let's begin with the thorny issue of copyright. The Copyright Clause of the US Constitution empowers Congress "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The "limited Times" part is most important. The framers of the Constitution sought to protect the rights of individual writers, while still granting the public access to cultural materials after those writers had enjoyed the proceeds of their labors for a set period. Not forever. A committee of the Continental Congress reported in 1783 that it was "persuaded that nothing is more properly a man's own than the fruit of his study, and that the protection and security of literary property would greatly tend to encourage genius and to promote useful discoveries." The original US copyright laws, copied almost exactly from the British Statute of Anne (1709), covered books, maps and charts for a maximum of 28 years: 14 to begin with, plus another 14 if the author survived the end of the first term.
Copyright law has undergone a number of changes; violent changes, in recent decades, in particular the "Mickey Mouse Protection Act" of 1998, so called because its passage is largely owing to the protracted efforts (in the form of lobbying, plus campaign contributions) of the Walt Disney Co. Disney, facing the loss of its copyright protections on Mickey Mouse et al., moved heaven and earth to pass this thing. Specifically, Mickey Mouse's copyright was set to expire in 2003, Pluto's in 2005, Goofy's in 2007 and Donald Duck's in 2009. "We strongly indicated our support for the measure," said Ken Green, a spokesman for Disney, in a risible understatement. The Mickey Mouse Protection Act extended corporate copyright to 95 years (or 120 years after creation), and individual copyright to the life of the artist plus 70 years (see the excellent chart here for details on current terms of copyright.)
The legislation is more properly called the Sonny Bono Act; the late singer and congressman, too, worked hard to see it passed. Apparently Bono felt that copyright should be eternal, a view that has also been espoused by fellow Republican Mark Helprin.
It goes without saying that this reasoning strays pretty far from "encouraging genius," or protecting the rights of individual authors (unless the Singularity is closer than I think). In fact, individual writers and authors, and individual citizens in general, are way more harmed than helped by the current state of copyright law. The corpus of art, literature, music and film still in copyright has been expanded again and again through legislation.
Had the various alterations to copyright law never been made, it would now be possible to quote, reprint, copy or reuse anything published up to 1981 or so for free. You'd be able to hold a Joan Crawford film festival for your charitable cause, or record songs from Here Come the Warm Jets, or remix big chunks of Star Wars or "Scooby-Doo" (or "Steamboat Willie") into your music video; you'd be able to form a company to reprint vintage wallpapers or Christmas cards, or Marimekko fabric prints, or back issues of Playboy or Modern Screen, all without having to get permission or pay fees.
Instead, the copyright laws have increasingly been used to protect the greed of the Mouse and his corporate brethren.
SCAN AND BE DAMNED
Copyright law being the morass that it is, Google was in something of a bind when it set out to create the Google Books project. How would they get round the proscription against reproducing books still in copyright? Their solution was just to scan the hell out of everything, make certain results available only as "snippets," and claim this practice as "fair use." As even the government's own guidance on this policy points out, "The distinction between fair use and infringement may be unclear and not easily defined."
The Copyright Act of 1976 created yet another terrible tangle by requiring authors of works published between 1923 and 1963 to file for copyright renewal. Absent the required renewals, those works have fallen into the public domain. And the renewal records from this mostly pre-computer period are a total mess, apparently. There is no authoritative central registry of copyright holders for these so-called "orphan works."
So Google had three classes of books to work with. In an awesome talk given at the Berkman Center in 2009, activist Lawrence Lessig said that 16% of the roughly 18 million works scanned by Google Books fell into the public domain, 9% were in copyright belonging to known rights holders, and the remaining 75% were orphan works. Public domain books are free to copy and distribute, of course, and for the 9% with known rights holders, Google would make available only as much as the rights holder wished. The remaining 75% would be displayed in the "snippet view" that Google believed would fall under the (eternally ill-defined and murky) provisions of "fair use," which allows, for example, quotations for the purposes of criticism or commentary.
Google has long had the goal of "organizing the world's information." They are always looking around for more and more stuff to index, because the more information they index, the better their search engine will be; also, and not coincidentally, the more results you will be seeing when you search, along with the advertisements they put on there. Ka-ching!
This latter point is beyond infuriating to authors, who have enough trouble trying to keep body and soul together as it is. Already Google is profiting from their work, not by selling unauthorized copies of it, which would be illegal, but by selling advertising alongside bits of it. This reasoning was bound to be challenged in court, though many copyright experts thought the "fair use" argument still might fly.
The Authors Guild and the publishers worked with Google for long years in an attempt to satisfy all parties to the 2005 suits, eventually hammering out a settlement in 2008. In this original settlement, Google would put up $125 million—$45 million for authors and rightsholders whose copyrights had been infringed; $45.5 million for the lawyers (!), and $34.5 million to set up what they called the Book Rights Registry, a copyright collective that would keep track of rightsholders and dispense part of Google's revenues to them. In exchange, Google and its partners would be held harmless, not only for past copying, but for the future as well. Troublingly, provisions were included for the eventual sale of whole books, and even more troublingly, the agreement was an opt-out one. That is to say, orphan works would be scanned anyway, with or without permission, unless the rightsholder should turn up and forbid it.
Many, many people objected to the original terms of the settlement. Within days after its announcement, the Harvard Crimson reported that "Robert C. Darnton ’60 said that uncertainties in the settlement made it impossible for [Harvard University Library] to participate." Amicus briefs flew thick and fast (the ones from the Internet Archive and New York Law School professor James Grimmelmann make particularly great, clear reading); Microsoft and Amazon, who have competing ambitions, made sure their objections were heard.
So there was a lot more wrangling, and the agreement was amended. And then, in March of this year, Judge Denny Chin put the kibosh on the whole business by rejecting the amended settlement entirely in a dense, thoughtful 48-page opinion pointing out that it was not the business of the courts to be altering the laws regarding orphan works, nor to be deciding at a stroke the fate of uncounted rightsholders who were not a party to the negotiations, nor to be granting new rights and unique commercial privileges to Google. Judge Chin wrote: "The questions of who should be entrusted with guardianship over orphan books, under what terms, and with what safeguards are matters more appropriately decided by Congress than through an agreement among private, self-interested parties."
I asked James Grimmelmann, who was kind enough to explain a lot of this stuff to me (as was Peter Brantley of the Internet Archive), what he thinks about the chances for a renegotiated settlement.
The settlement in anything like its old form is dead beyond hope of resurrection. Judge Chin's opinion made that very clear. Because he ruled that the use of a class action to launch a complicated forward-looking bookstore is completely impermissible, there really is no way to bring something like the settlement back. A new negotiated settlement would be so different — and so much less ambitious — that it should be thought of as something entirely different.
(Prof. Grimmelmann's blog, The Laboratorium, is an absolute marvel if you want to learn more about this stuff.)
The settlement negotiations continue, with a new hearing scheduled for next spring.
A PEN OF IRON, AND WITH THE POINT OF A DIAMOND
There are those who argue that authors are benefited by having the chance to acquire new readers through search engines; a valid point. Grimmelmann said,
[I]t is hard to imagine — for most books — a three-line snippet display showing a user everything she wanted to see in the book. It is easy to imagine — for many books — a three-line snippet display showing the user enough to convince her to buy the book. [...] On balance, having a good search engine is more likely to benefit authors than to harm them.
On the other side of this question are authors like Ursula Le Guin, who wrote passionately (and persuasively) against the Google Books settlement, and who quit the Authors Guild in protest of it. What would Prof. Grimmelmann say to Ms. Le Guin, I asked, who believes that even making scans of in-copyright books without permission is wrong and should be stopped?
Google has always claimed that what it is doing in scanning books is legal. Most copyright scholars agree, at least as to the scanning itself. The fair use analysis, at least based on existing precedents such as those applying to Google's search engine, tends to look pretty good for Google. The matter is hardly settled, and a court could well hold that Google is infringing. But even if it's infringing, what Google is doing is not criminal. The courts have held that someone who infringes copyright but has a genuine belief that what they are doing is not an infringement can be civilly liable for damages, but has committed no crime. And despite the various accusations of villainy hurled Google's way, its employees' belief that the scanning is legal is both sincere and reasonable.
The impasse between legal scholars and authors is perhaps attributable to their differing views on writing itself. Academics are not paid "by the reader" for their writing, for lack of a better way of putting it; I've found that there is a sort of fault line regarding opinions on copyright protection between academic and commercial writers generally, one that may have to do with the notion of who is paying to read our work. Those who write for the public feel a powerful bond with individual readers. The tie for academic writers is more to their institutions, so maybe they don't feel as strong a need to influence the circumstances of their contact with individual readers.
I wrote to ask Ursula Le Guin what the ideal outcome of the Google Books case would be, from the perspective of authors. She wrote back in an email (and hello YES, I freely admit that receiving an email from her caused me to leap around my office in an access of fan-enthusiasm).
"Their agreement, or a ruling requiring them, to immediately stop digitalising copyrighted books without obtaining permission from the copyright owner. With a reminder to the libraries that have been facilitating this illegal activity that it is piracy, and they should not have agreed to it."
Prof. Grimmelmann's observations regarding the settlement are particularly interesting in light of Ms. Le Guin's remarks.
Google has done quite well, tactically, from the five years that the lawsuit spent bogged down by the settlement. It wore down its adversaries, cost them millions of dollars, and sapped some of their will to fight. The e-book world looks very different now, and Google looks much less threatening.
But Google also did itself a huge disservice with the settlement. To the extent that the scanning and the settlement are now inextricably linked in so many people's minds, it's Google's own fault for commingling the two. Google has managed to convince many authors that scanning and snippets were just stalking horses for making all books available online, possibly for free. So in that respect, the settlement was a huge blunder, because it turned any number of skeptical authors into intensely angry authors.
I suspect that it's not so much a matter of authors fearing that their books would be made available for free so much as their feeling disrespected by Google's failure to ask their permission. A number of the letters Judge Chin received in opposition to the settlement were from authors who just don't want their books on the Internet. These authors, I think, want at least a modicum of influence over how their books can be accessed.
ON AMAZON ISLAND
For those concerned with the future of publishing, the deeper problem here is that Google and Amazon are increasingly becoming the gatekeepers for textual information, or, to be more specific, for information that would before have been contained in books. The two companies do not currently face serious competition in this area from Apple, nor from Microsoft or Comcast, nor even from Barnes & Noble. On top of which, both Google and Amazon have become publishers of books in their own right, Amazon through its Kindle Direct Publishing system and Google through its Google Books Partner Program.
In the case of Amazon, we now have a single entity, rather like Live Nation/Ticketmaster, that is publisher, marketer and retailer all in one, controlling the entire path of publishing and distribution. It is easy to envision a time when Amazon could simply anoint any bestseller it pleases, by increasing the visibility of a given title according to any internal considerations it pleases. And in the absence of meaningful competition, how will non-Amazonian authors be able to reach an audience? Any author's chances might conceivably be dependent on a single entity, or perhaps two, for Google is not really so far behind Amazon in this respect—and had the settlement been approved, they would have been far ahead. In any case, that kind of power isn't just commercial: it is cultural, political, it touches everything. So authors, I think, don't even fear the way this power is wielded now so much as they fear the way it might come to be wielded in future.
Think of what happened even to Joyce, or to Nabokov, whose options for publishing controversial works were severely limited by the commercial constraints in place at the time. We must take care that the Girodias of the future is able to do his thing freely.
The "gatekeeper" role of publishers has traditionally been reckoned, to an extent, as a filter for "quality," which tangentially brings up the dark specter of the culture wars. Amanda French, an influential digital humanities scholar affiliated with NYU and the Center for History and New Media at George Mason University, talked with me about this recently. She pointed out that for today's humanities scholar, "literary study is not choosing a canon." That is, the role of scholars in today's literary culture no longer means identifying or championing "the best" literature; rather, it means observing and interpreting literary activity of all kinds, and throughout the culture. Prof. French is therefore generally in favor of indexing everything, of maximum availability, and of the broadest possible access to books that can be got on behalf of the public. Digital humanities scholars like Prof. French have a nuanced view of efforts like those of Google, balancing the public benefits against the potential for harm.
The notion of critical thinking now is that it can and should be applied to anything and everything; we've moved beyond the concept of high/low. We seek to judge the products of culture dispassionately, without assigning set values. French suggests that the day of authorities like Trilling and Leavis ("he who would instruct") is at an end. If we make "everything" available, this leaves the reader free to choose, and it leaves scholars free to interpret and synthesize the widest possible amount of information, and help us gain the greatest possible awareness and understanding.
But additionally, I think, the job of the modern scholar or critic is to read widely and bring his findings to a public of interested fellow-seekers, something more like a DJ for culture. If we replace the canonical notion of "quality" with notions of "relevance" and "interest," especially at a time when the tidal wave of published material is crashing down harder than ever before, then maybe we will really be getting somewhere. If publishers can continue to assume this role within a viable commercial framework, and call attention to its value, that will help to expand and improve literature as a whole.
Ken Auletta gave an even better validation of the traditional publisher's role in the New Yorker last year.
The industry produces more than a hundred thousand books a year, seventy per cent of which will not earn back the money that their authors have been advanced; aside from returns, royalty advances are by far publishers’ biggest expense. Although critics argue that traditional book publishing takes too much money from authors, in reality the profits earned by the relatively small percentage of authors whose books make money essentially go to subsidizing less commercially successful writers. The system is inefficient, but it supports a class of professional writers, which might not otherwise exist.
Or we could put this another way. Despite its imperfections, the publishing industry rolls the dice on a hundred thousand books, so that American readers have this enormous wealth of books to choose from every year. Might monopolistically-inclined concerns such as Amazon and Google eventually deprive us of those riches? That is to say, in the absence of competition, which might well mean the absence of the chance to make a living at writing books unless you've got a favorable deal with the only game(s) online: how many of us hacks would invest that kind of time? Because somehow I can't see Amazon paying out even ordinary, traditional-sized advances anytime soon.
In fact, we know a little bit about how Amazon treats employees who haven't got much else in the way of options. Evidently they can always get another temporary employee to toss into their 110-degree Allentown
oven warehouse. As one such employee observed, "they can do that because there aren't any jobs in the area." Which is the nice thing about gaining control of a whole "area," or of a whole industry.
Seen from this perspective, the traditional publishing world seems much maligned. There is no question that New York, San Francisco, Chicago and Los Angeles are full of editors and agents who love books. Maybe our cultural production is at present in better hands than we suppose.
SEE NO EVIL
"Don't be evil," wrote Sergey Brin and Larry Page in Google's 2004 IPO documents, thereby setting an appallingly low bar for the fledgling megacorp. Even "be halfway okay" would have been a noticeably more ambitious goal. And yet "Don't be evil" would be quoted and requoted from that moment on, because it sounds kind of playful and geeky. But what the heck did they actually mean by that, when they first wrote it? It turns out that they were bragging about a pretty specific thing. Here is the text from their original S-1 filing:
DON'T BE EVIL
Don't be evil. We believe strongly that in the long term, we will be better served—as shareholders and in all other ways—by a company that does good things for the world even if we forgo some short term gains. This is an important aspect of our culture and is broadly shared within the company.
Google users trust our systems to help them with important decisions: medical, financial and many others. Our search results are the best we know how to produce. They are unbiased and objective, and we do not accept payment for them or for inclusion or more frequent updating. We also display advertising, which we work hard to make relevant, and we label it clearly. [...] We believe it is important for everyone to have access to the best information and research, not only to the information people pay for you to see.
You'd think it would be obvious that sensible adults generally mean for our activities, whether professional or private, to have beneficial results "for the world." "Short term gains," now—that is the desire that is bred into the bone for today's young businessman, to the extent that Page and Brin felt it necessary to defend any possible deviation from that all-important purpose. However. When a company has a nearly $200 billion market cap, they have got really very powerful shareholder interests to answer to. At that point it is, it must be, all about the profits, and zero about the adorable.
The word "evil" occurs three times in the entirety of Google's 161-page 2004 S-1 filing: twice in the passage above, and once more at the end of the introduction, giving a bit more of a clue, perplexing as it is, as to what the young entrepreneurs thought that "evil" might actually entail: "We will live up to our 'don't be evil' principle by keeping user trust and not accepting payment for search results." (Few, perhaps, would equate "evil" with "charging money for search engine results." This rhetorical weakness is maybe what made the company quietly back off of the informal motto in 2009.)
As one who has been using Google since the days when the home page still read "beta" (1998 or thereabouts), I can recall a time when nothing at all stood between you and your search results. No eHow, no Demand Media at all, no SEO fakeouts of any kind, no bogus tech-geek advice sites or malware masquerading as anti-virus downloads, and no Google ads. But anyway, here is what happens today when you search on "los angeles real estate" at the search engine that will be "keeping user trust" by "not accepting payment for search results."
Check out the top of this list. Isn't this results page cutting it a bit fine as to the premise of "not accepting money for search results,"—or "evil," as posited in Google's original S-1 filing?
It's in the nature of profit-making enterprises to put profits first. The promise of continued good service has a way of evaporating, given the insatiable demands of shareholders. If you are a capitalist, you will argue that the market ensures that the public will end up with good services, because if, for instance, Google should grow polluted with paid results and Demand Media results, that weakness creates the opportunity for a competitor to come in with a better product and take the business away.
The trouble is that historically nearly any powerful business, e.g. Microsoft, Oracle, Johnson & Johnson, etc., etc., will use its power to crush or at least cripple any competitor foolhardy enough to mount a challenge, superior product or no. The capitalist system cannot protect against this rapacity and indeed, your average capitalist is all for it. Ray Kroc of McDonald's was once asked what he would do if he saw a competitor drowning. "Put a hose in his mouth," Kroc replied, evilly. But this famous remark is still quoted approvingly by the suits all the time.
THE JOB CREATORS
The bedrock issue here is that writers, musicians and artists want to make a living. They are not looking necessarily to buy themselves a quantity of Lear jets, but merely to make a living, and our current system does not favor that outcome. Maybe it's just me, but I thought the outcry that greeted Chad Harbach's $650,000 advance or whatever it was for ten years' work actually exceeded the fuss made over the remuneration of incredible CEO failures like Carly Fiorina, Bob Nardelli, Craig A. Dubow and so many, many others, each of whom "made," each year, gigantic, obscene multiples of Harbach's money, with nothing to show for their efforts but mass layoffs and gamed balance sheets and a hundred kinds of ruination. No, nothing, less than nothing, not so much as one single baseball-themed novel.
What very few have focused on is the sharecropper mentality with which corporations generally treat what are now vilely called "content providers," as if "content" were some kind of sludge that corporations can just dredge up out of whatever ditch, scoop into a bucket and pour down the throat of the culture. And we are accepting this; we accept that authors and musicians are practically required to starve, and we accept that journalists and painters must starve, also, and pick up whatever crumbs may fall from the corporate tables of The Huffington Post or LiveNation or whatever sharecropper bosses are self-righteously raking it in. The same way we somehow accept that the very copyright laws, laws that were written to protect the livelihood of writers and artists, have been used instead in the interest of the Disney Corporation, which is not an artist or a writer (or indeed a person, if you ask me) at all.
To some degree this is what the Occupy protests are about, as David Carr suggested on Monday. We don't want our human essence just squeezed out, our eyeballs monetized as if we were just plugged in and fueling the Matrix. But the truth is that those who wield corporate power just don't see themselves as part of a larger whole to which they owe something, to which they have real responsibility, a larger whole that connects us all, not even when Elizabeth Warren points this out in the clearest possible terms. Maybe the increasing public pressure can change this some.
I asked Ms. Le Guin a second question: how can readers who wish to support authors' rights best do so?
By not supporting textual piracy — violation of copyright — on the Net or anywhere else.
By being aware that huge corporations, such as Google and Amazon, are taking increasing control over what gets published, on paper or electronically, and therefore controlling what we read.
By not buying your books from Amazon, but from a local independent bookstore selling online, or a big indie such as Powells — it's just as easy and the selection is much better!
What this means is that the extra five or ten bucks you are paying at the bookshop or at Powells.com to buy whatever book instead of buying it at Amazon, it's like a vote for the maintenance of a certain kind of culture, a better way of treating other people.
NOW FOR THE GOOD NEWS
So you may recall the august name of Robert Darnton that I mentioned above; he is the head of the Harvard University Library. Darnton is an Olympian figure in the fight for the democratization and spread of knowledge, who has long been advocating for a national digital library, in the NYRB and elsewhere. He, Brewster Kahle of the Internet Archive (founder of Alexa and the Wayback Machine), plus basically a Who's Who of ultra-technologists, academics and digital pioneers, are working to make it happen.
In the wake of the failure of the Google Books Settlement, a truly great thing is going on at the Digital Public Library of America, which aims to create this free national digital library. A plenary meeting was held just last week in Washington DC, at which it was announced that DPLA has secured a $5 million grant from the Sloan Foundation and Arcadia Fund with which to crank up the effort. Also, a collaboration was announced between DPLA and Europeana, which is setting up a similar project in Europe.
Why is this so incredibly great? To start with, DPLA is a not-for-profit project. Second, it's entirely open source: any code funded by the project will be "freely accessible for others to fork, host, and replicate with no discrimination based on use or field of endeavor." All the metadata created for the project will go straight into the public domain. Best of all, DPLA has the core mission of a library, which is to serve the public, and to ensure the preservation of our cultural heritage.
What it really means is that with luck and support, there will be a nonprofit, totally open-source competitor in the digital book search business. And freedom is in peril, you know. Support it with all your might.