March 23, 2007  ·  Lessig

As reported at the Stanford Center for Internet and Society, Shloss v. Estate of James Joyce has settled. As you can read in the settlement agreement, we got everything we were asking for, and more (the rights to republish the book). This is an important victory for a very strong soul, Carol Shloss, and for others in her field. I am grateful to our team for their hard work. (Contrary to some news reports, while I was instrumental in bringing this case and in setting its strategy, the settlement was effected by Anthony Falzone and David Olson.) (Press Release).

But this is only the first in what I expect will be a series of cases defending the rights of academics against improperly aggressive copyright holders. I hope this is the last case against this particular defendant. But we’ve already seen others that may prove as egregious as this. One important part of the mission of the “Fair Use Project” is to defend the rights of scholars and academics, drawing more clearly and practically the boundary that “fair use” is intended to defend in theory. Stay tuned.

March 22, 2007  ·  Lessig

Another Philadelphia court has struck another effort by Congress to regulate “harmful to minors” speech. (ACLU v. Gonzales). No surprise. Though it has taken almost a decade, it is the right answer given the flaws in the statute.

The core of the court’s rationale was the effectiveness of filters. We should remember the ACLU’s own warnings about a world filled with private filters. They were right then; the warnings are more valid now.

As it happens, I have just completed the third of my legislative recommendations to Congress. As it happens, it is about regulating “harmful to minors” material. My friends won’t like it. My not-friends don’t like me. But here it is anyway. You can download it here. Or you can watch it on Google Video below:

March 13, 2007  ·  Lessig

Viacom_logo.png v. Logo_tagline_sm.gif

Ok, so just about 10 years after the content industry got Congress to adopt one of the most sweeping changes in American copyright law (aka, the DMCA), the content industry has decided that it doesn’t like one part of that law — the Safe Harbor Provision that protects sites such as YouTube. But rather than go to Congress to get them to change the law, the content industry, knowing Congress would not change the law, turns to its new best friend — the common law of copyright, as articulated by the Supreme Court. See, e.g., Grokster. Why burden Congress with the hassle of law making when you’ve got a Supreme Court eager to jump in and legislate? At least, that is, when there’s no Constitutional issue at stake. When the Constitution’s at stake, then it is a matter for — you guessed it — Congress. See, e.g., Eldred v. Ashcroft.

Note Count IV in the complaint – “Inducement of Copyright Infringement” – aka, the monster Grokster created.

This case — if it is really intended as a law suit and not a move in a bargaining game — should be decided on the meaning of s512(c). The question will be whether YouTube has the “ability to control” uploads before they are identified as infringing. Viacom complains that YouTube shifts to it the burden of identifying infringing content. Not true. The DMCA does. Until at least Congress amends it, or the Supreme Court adds some new common law of copyright to the statute books.

March 13, 2007  ·  Lessig

Educause has published a nice short piece about Creative Commons licenses. Of particular interest to me is question 5 — “What are the downsides?” While I agree there are boundaries to clarify about noncommercial licensing (and more about that soon), I’m not as convinced that there is any ambiguity about the scope of the “share alike” provision. The example considered is of a BY-SA photo included in a report. Does the whole report have to be BY-SA? My view is no — including a picture is not a derivative work of the picture. Some have suggested we expand BY-SA to reach beyond derivative works. We’ll be talking about that more soon on the CC list. Meanwhile, I’m grateful to see such good work devoted to explaining our work.

March 13, 2007  ·  Lessig

Nathan Weinberg has a piece on WebProNews responding to my response to Tom Rubin’s criticism of Google’s “respect” for copyright. The piece is (well written and) useful, because it packs in its couple hundred words all the fallacies that haunt this anti-Google debate.

Fallacy one: “When you make a copy of a copyrighted work, you are in essence stealing it, and even when I download music and movies, I never kid myself that what I am doing is legal.”

First, Nathan, don’t download music and movies without the permission of the copyright owner. Bad, bad, bad.

Second, even if making “a copy of a copyrighted work” is illegal, it is not “in essence stealing it.” See the Supreme Court’s rejection of this false analogy in footnote 33 of Sony v. Universal.

But third, and most important, not every “copy” violates copyright law. In particular, if a copy is “fair use,” then copyright law has not been violated. The question in this case is thus, as always, is the copying for purposes of making snippet access available “fair use.” As much as you know that it is wrong to download music without the permission of the copyright owner, I hope you also know that it is right to make copies — even without the permission of the copyright owner — when such copies are fair use.

Fallacy two: “While there are many authors who care more about getting their books out there than making money, the vast majority is trying to earn a living. Those authors whose books are out of print, but still in copyright, would love an opportunity to make some money off their older books, but Google’s plan involves copying them without permission.”

True, most authors would prefer to make more money from their works than they did before. True, Google plans on copying them (for purposes of making snippet access available) without permission. But the implication — that Google’s copying will reduce author’s opportunity to make money — is false. Out of print books are — by definition — books the authors are not making money on. Google’s Book Search will refer people who discover the out of print book to book sellers. If demand for a currently out of print book grows, then it is more likely than before that the book will go back into print, meaning again, the author can make money. So contrary to the “if Google copies, authors lose” fallacy, if Google enables access, at least some authors will get something they don’t have right now — their out of print book back in print.

Fallacy three: “Even if all the authors want their books in Google, I’ve always felt that to respect me, you have to show respect, and that means asking me if what you are doing is okay. Don’t tell these authors what’s best for them, that shows no respect at all.”

First, both sides in this debate are effectively “tell[ing] these authors what’s best for them.” Microsoft and the Publishers are telling the authors that it is best for them that the law ban companies like Google from securing access to snippets of their works. They want a rule that says “ask first” not for permission to distribute copies of their books, but for permission to enable access through a 21st century card catalog. When in the history of man did the law require permission from an author (or publisher) for a work to be included in a card catalog?

Second, the point ignores the central point in this debate: Given the insanely inefficient system of copyright that the government has created, there’s no way to identify the current owners of these copyrights (for works out of print). So how, again, are these people to be “asked”?

Fallacy four: “Mr. Lessig, even if you want Google to scan and index your book, even if you want the knowledge in your book spread throughout the earth, wouldn’t you want Google, a company that will make money off your book you will never see, to at least ask permission first?”

There are lots of people who make money off of my work without asking me, and it’s a good thing too. Look at the bump in Stephen Manes Google rank from his criticism of me. How much money do you think Forbes got in ads from the click-throughs that this article — calling me an “idiot” and “moron” and other such stuff? Do you think Manes asked me before he tried to profit as he did. (No.) Do you think he should have to ask me? I certainly don’t. If the use is “fair use” — which even Manes article is — then we should encourage people to make money on it. The more money people can make, the more the economy around spreading ideas can grow.

March 8, 2007  ·  Lessig

C-Span has announced that it will make “video of congressional hearings white house and other federal events” available under a license that requires ATTRIBUTION, and limited to NONCOMMERCIAL use. The press release indicates C-Span will “borrows from the approach to copyright known in the online community as ‘Creative Commons.’”

We’re happy to share.

Should they be even more liberal? The Kos says yes. More of course would be better. But first steps are progress, and deserve sincere praise.

March 7, 2007  ·  Lessig

Tom Rubin is a very smart man. I don’t think I’ve disagreed with any copyright opinion of his, until now. The crucial passage (in my view) from his recent speech before the American Publishers, piling on to Google, was as follows:

Rather than delve into this arcane legal issue, what we really should be asking is whether it would be possible for Google to provide its Book Search service in a way that respects copyright. The answer to this question is: of course there is. How am I so sure? Well, because we at Microsoft are doing it. And not just Microsoft. We and others are working on search-driven projects that are proceeding with the express permission and support of copyright owners. And then there’s Google’s own Publisher Partner program, which makes book content available online only after obtaining the necessary authorization.

Let’s first put this quote in some context.

Google’s “Book Search service” aims to provide access to three kinds of published works: (1) works in the public domain, (2) works in copyright and in print, and (3) works in copyright but no longer in print. As some of you may recall from the presentation I made a while ago, about 16% of books are in category (1); 9% of books are in category (2), and 75% of books are in category (3).

With respect to categories (1) and (2), Google is “respect[ing] copyright” just as “we at Microsoft are doing it.” With respect to category (1), that “respect” means no permission needed. With respect to (2), that means deals with the publishers whose works are made available — deals which give enhanced access over the default “snippet access.”

So that leaves category (3) — the 75% of works presumptively under copyright, but no longer in print. How do you “respect” copyright with respect to those works?

Well, Microsoft “respects” these copyright holders by not providing any access to their works. Google “respects” these copyright holders by providing “snippet access” — just enough to see a sentence or two around the words you’re searching for, and then links to actually get the book (either at a library, or from a book seller).

This may just be my own vanity, but I suspect that more copyright holders of books no longer in print would like Google’s kind of respect over Microsoft’s. But in any case, it is not true to say that Google could have provided “its Book Search service” in the way that “we at Microsoft are doing it.” If asking first is always required, then because of the insanely inefficient system of property that we call copyright — inefficient again because the government has designed it so that there’s no simple way to know who owns what, the very essence of a property system — 75% of books could not be within a digital view of our past.