November 26, 2005  ·  Lessig

There’s been lots of interesting commentary about Microsoft’s recent decision to submit its Office Document Formats to ECMA for “open standardization.” That’s good news, depending, of course, on the details.

But this is even better news: Microsoft has also promised that “it will not seek to enforce any of its patent claims necessary to conform to the technical specifications for the Microsoft Office 2003 XML Reference Schemas.”

This shows some hope to the complex of issues around patents affecting software in the land of Microsoft. Even opponents of software and business method patents will advise companies to secure them — given others can as well. But behavior like this goes a long way to neutralizing the negative effect of such patents. No license. No agreement. Just an unequivocal promise — at least with respect to those who don’t sue Microsoft.

November 18, 2005  ·  Lessig

It was a “lively” event, or so I was told. I’m not a good judge of what it was. But I awoke this morning more resolved about the wrongness in the rhetoric around this issue. And of course, mornings after then are always mornings of regret.

The AAP and AG say they believe in “fair use.” If that’s so, then they must believe that someone has a right to make money using fairly the work of others. If that’s so, then they must believe that someone has the right to fairly use the work of others without permission. And so if that’s so, then if Google Book Search is fair use. not only is Google doing nothing wrong. Google is, from the perspective of the authors and publishers, doing something extra nice — giving them the permission to opt out of the index.

So the only question is whether Google’s use is “fair.” Now anyone who knows anything about the law knows that’s a hard question. Reasonable people may differ about it. But the frustration I consistently feel with the position of the AAP and AG is that the reasons they offer for why Google’s use is not fair would mean that practically no use would be fair.

E.g., Nick Taylor’s complaint was that Google was profiting on the work of others. But that’s true with every commercial use that’s also a fair use. If Taylor’s theory were correct, you couldn’t make money from a book that fairly quoted another author. Or a film that fairly included clips from another film. That would be a radical shrinkage of “fair use.”

Or, e.g., Allan Adler complained that Google hadn’t asked permission. But again, you don’t need to ask permission to use a work fairly. If Adler’s theory were correct, that too would mean a radical shrinkage of “fair use.”

Or finally, in the part of the session closest to the actual law of fair use, Adler said the reasons this use was not fair was that there was a “potential” market that Google was just taking. What was that market? The market in licensing the use of building a fully searchable index of books. But you can always hypothesize a “potential” market. And if that’s all that it took, again, there would be a radical shrinkage of “fair use.”

Adler’s last point made me recognize something I hadn’t seen before. Both sides of this debate have their own “potential” defense. They say this is not “fair use” because they can imagine a “potential” market within which this use could be licensed — even though there’s no such market just now, and neither had anyone thought of such a market even two years ago. (And don’t start blathering about the market to search inside a book — that’s a very different functionality from what Google is offering. Google’s is an index into the book; it doesn’t give you a book to read.)

We have our own favorite “potential” defense — a technology “capable” of substantial non-infringing uses should be free of secondary liability. So we said Grokster was a such a technology, even if less than 10% of the uses were actually non-infringing. They said that’s not enough of a potential.

Both sides might learn something from the criticism of the other. If fair use is lost just because you can imagine a market, then there is no fair, or free use, in a digital age. Every use triggers copyright law, because every use is a copy. And there’s no limit to the ability to imagine a market, so then every use would have to be with permission. That’s the same point made against Sony — if all it takes is imagining a non-infringing use, then there could be no such thing as secondary liability.

Our side, I take it, is happy with the implication that there is no secondary liability. Their side, I take it, is happy with the implication that there is very little fair use.

Both sides suggest to me that we need to rethink fundamentally how this system of speech regulation is regulating.

November 9, 2005  ·  Lessig

Apparently, the “Progress” and Freedom Foundation has joined the publishers in the GooglePrint case. James Delong filled the inbox of countless many to inform them about “Google Print and the Aerospace Analogy: Lessig’s Counterfactual History.” The whole missive was a response to a blog post I had written when Google was first sued.

As DeLong writes (thanks, Neil!):

In a recent blog about Google Print, Stanford Law Professor Larry Lessig repeats a story that is also at the center of his book Free Culture. He cites the 1946 airplane noise case of U.S. v. Causby as clearing the way for the air age by overthrowing the old legal doctrine that a landowner’s property extends to the heavens, thus making the airspace into a commons. He then draws an analogy to Google Print, arguing that the old copyright regime must be similarly overthrown in the name of the new commons of the Internet Age. Unfortunately, his depiction misstates the issues in Causby, ignores the fact that the landowner actually won, and fails to mention that the case stands for close to the opposite of the principles for which he cites it.

Who could have thought such drama could be generated by a blog post? Or that such mistaken drama could be generated by a blog post?

My use of the story — in both contexts — is perfectly apt, and correct. Here’s the passage I quoted from the case in the book, and referred to in the blog post:

It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe – Cujus est solum ejus est usque ad coelum. But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. 328 U.S. at 261.

The use I’ve made of this paragraph is simply to remark an old property rule (that property extended to the “periphery of the universe”) that modern “common sense” changed (by making the “air a public highway”). What might have made sense with one technology (a world without airplanes) no longer makes sense with another technology (airplanes) and so society thus faces a choice: respect the ancient doctrines despite the consequence for progress (by which I mean the ordinary meaning of “progress” and not the very different meaning intended in the title, “Progress & Freedom Foundation”), or let “common sense” revolt against that regressive idea. The case recognized, and respected, the revolt. The law of property does not extend to the “periphery of the universe.”

DeLong says this is wrong. Again, as he describes, I had described the case as “overthrowing the old legal doctrine that a landowner’s property extends to the heavens, thus making the airspace into a commons.” This description, DeLong asserts, “misstates” the case. For in fact, the Causby’s won. And that instead, as DeLong explains the case,

Its basic teaching is that not even a government, let alone a private party, is permitted to simply decree that something is now a commons, without regard to the impact on existing rights.

This is now my favorite example of the kind of binary thinking that pollutes Washington. My claim had been that the “ancient doctrine” was declared void — that the right of property did not extend to the “periphery of the universe.” DeLong is right that the Causby’s prevailed in the Supreme Court on a takings claim. But their victory was not because, as DeLong states, “not even a government, let alone a private party, is permitted to simply decree that something is now a commons.” Their victory was because the invasion they alleged was so extreme. But the Court is absolutely clear that the old rule — that property extends to the “periphery of the universe” is no longer the law. As Douglas writes,

The airspace, apart from the immediate reaches above the land, is part of the public domain.

“[P]art of the public domain.” How did it become part of the public domain? By a “simpl[e] decree that something is now a commons.” Does that mean everything is in the public domain? Of course not: as the case recognizes, the “immediate reaches above the land” may still be claimed. But beyond the “immediate reaches above the land,” property that before was claimed by landowners was now decreed to be “in the public domain.”

Did anyone receive compensation for that taking? No. Has DeLong provided anything to contradict that claim? No. Instead DeLong’s analysis follows precisely the binary thought of most in Washington: If someone is claiming that the extreme claims of property are wrong, then someone must be claiming that there is no claim of property.

But of course, no one I know makes such an extreme claim. I think Google has a “fair use” right to build an index to books. (See a careful account of this by Bill Patry.) I don’t think Google has the right to scan copyrighted books from a library and serve full copies of those books to anyone in the world. That is, I distinguish between some rights, and all rights.

The Causby case matches that distinction precisely:

(1) The law gives copyright owners an exclusive right to “copy.” That’s the equivalent of the law giving land owners rights to the “periphery of the universe.”

(2) A new technology (digital networks; airplanes) now renders absurd respecting that exclusive right as it was before that technology.

(3) The proper response is for commons sense to “revolt” against the extreme claim (that the publishers get to control every copy, even one to simply produce an index; that the rights to land extend to the “periphery of the universe”)

(4) Revolting against the extreme claim does not entail abolishing all rights absolutely. The Causby’s can complain about planes flying within the “immediate reaches” of the ground. The authors and publishers should be able to complain about, e.g., someone who scanned and made full copies of a copyrighted book available online.

But there is one great and true part to DeLong’s email. As he writes,

Causby was entitled only to the decline in his property value, not to a share of the gains from the air age.

Truly, if there is a principle here, that should be it. The baseline is the value of the property BEFORE the new technology. Does the new technology reduce THAT value. Put differently, would authors and publishers be worse off with Google Print than they were before Google Print?

To ask that question is to answer it — of course the authors and publishers are better off with Google Print.

Are they as well off as they could be, if the law gives them the power to extort from the innovator some payment for his innovation?

To ask that question is to understand why this case has been filed: Like Valenti with the Betamax, the publishers and Authors Guild simply want to tax the value created by Google Print. They are not complaining about any “decline in [their] property value” caused by Google Print. They are instead racing to claim the value that ancient law is said to give to them, despite the harm that claim produces for “progress.”

November 6, 2005  ·  Lessig

I’ve gotten a bunch of emails recently from people asking whether the NJ Supreme Court has ruled in the Boychoir case. (See Living with Ghosts). The matter has now returned to the blogosphere in an extensive piece by a sympathetic writer.

The answer is no. Though we argued the case almost a year ago (11/29), there’s no word from the Court. I am very surprised at the delay — indeed, a bit worried the delay is in part because of the New York Magazine article. I feel so stupid that I didn’t get a commitment from them not to publish the article before the case was decided. When they told me when they expected it would run, it was months beyond the normal time it take the NJ Supreme Court to decide cases. Anyway, bottom line — no word yet.