June 8, 2007  ·  Lessig

Engadget reports that “the head honcho of Macmillan Publishers” lifted a couple Google laptops at a recent BookExpo America, and then when he returned them, retorted “hope you enjoyed a taste of your own medicine,” and “there wasn’t a sign by the computers informing him not to steal them.”

So this betrays an astonishing level of ignorance, even for a “head honcho.”

Remember (and I did a 30 minute preso here to explain it) Google Books proposed to scan 18,000,000 books. Of those, 16% were in the public domain, and 9% were in copyright, and in print. That means, 75% of the books Google would scan are out of print but presumptively under copyright.

The publishers and Google already have deals for the 9%. And being in the public domain, no one needs a deal for the 16%. So the only thing the publishers might be complaining about is the 75% which are out of print and presumptively under copyright.

With respect to these, Google intends to index the books, and make them searchable. If a hit comes through the search engine, Google offers snippets of the text relevant to the search. The page includes links to libraries where the book might be borrowed; it includes links to book stores where the book might be purchased. And, I take it, if the “publishers” were to choose to publish the book again, it would also include a link to that publisher.

Finally, any author who wants to be removed from this index can be removed. As with Google on the net, anyone can opt out.

So vis-a-viz a computer sitting at a demonstration booth at a conference, is the “head honcho’s” action like Google’s?

Obviously not. And let us count the ways:

(1) Any such list must begin with the point obvious to all since the beginning of something called “IP,” but set to poetry by Jefferson. Read the full quote at the Connexions project. But the relevant line marking the difference here is this: “Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.” If the “head honcho” has Google’s computers, Google can’t use them. But if Google indexes out of print books, that does not — in the least — reduce the access anyone else has to the same property.

(2) A computer sitting at a marked booth at a conference is like the 9% in print, and under copyright. With respect to those, Google has deals with the publishers. So the “head honcho’s” action is more like offering in print, in copyright books for free, and in total — something Google is emphatically not doing.

(3) If the computer was not sitting at a market booth, but instead was in a trash dump (like, for example, the publishers out of print book list), or on a field, lost to everyone, then that fits the category of property that Google is dealing with. But again, Google doesn’t take possession of the property in any way that interefers with anyone else taking possession of the property. The publisher, for example, is perfectly free to decide to publish the book again. Instead, in this case, what Google does is more like posting an advertisement — “lost computer, here it is, is it yours?”

(4) Or again, imagine the computer was left after the conference. No easy way to identify who the owner was. No number to call. In that case, what would the “head honcho’s,” or anyone’s rights be? Well depending upon local law, the basic rule is finders keepers, loser weepers. There might be an obligation to advertise. There might be an obligation to turn the property over to some entity that holds it for some period of time. But after that time, the property would go to the “head honcho” — totally free of any obligation to Google. Compare copyright law: where the property can be lost for almost a century, and no one (according to the publishers at least) has any right to do anything with it. Once an orphan, the law of copyright says, you must be an orphan. No one is permitted to even help advertise your status through a technique like search engine.

(5) Or again, imagine the computer was a bank account in New York. And imagine, the bank lost track of the owner of the account. After 5 years, the money is forfeited to the state. Compare copyright: in New York state, a sound recording could be 100 years old, but no one has any freedom with respect to that sound recording unless the copyright owner can be discovered.

The list could go on, but the obvious point is this: Physical property and the intangible property we call copyright are different. Jefferson pointed to one difference. But the really crucial difference that I’ve been trying to get people to see is that physical property systems have a host of techniques to assure that the property system is efficient. Copyright does not. Copyright is the least efficient property system constructed by government — which is saying a lot. And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    I think you’ve unwittingly fallen into a trap set by IP maximalists – defining the privilege of reproduction as constituting ownership of someone else’s property.

    A book is the physical and intellectual property of its possessor.

    The publisher may enjoy the suspension of one or two of the possessor’s property rights, e.g. the right to copy their own property, but this is a privilege held by the publisher for a limited time. The book along with its words (the intellectual property) belongs to the purchaser of the book.

    Property is property. It matters not whether you can touch it. If you hold it, can fend off others who covet it, and can decide who you sell or give it to, then it’s your property. The fact that the state has granted a monopoly on its reproduction to the ‘copyright’ holder does not cause you to surrender your property, it only makes you liable for prosecution if you’re ever caught infringing their monopoly.

    A basket you weave is just as much your property as the poem you write. Similarly, the basket you buy is just as much your property as the copy of a poem you buy. This is property. It’s meaning is only shot to hell by patent law prohibiting you from making a basket like the one you’ve just purchased, or making a copy of the poem you’ve just purchased.

    Don’t confuse property with the unethical privileges of patent and copyright.

  • billb

    Did Google press charges for theft? That’ll learn the IP industry quick!

  • Jardinero1

    Shilling for google. A sure sign of a shill is that he has nothing disparaging to say about who he is shilling for.

  • Paul

    I’m not sure your description of scenario 5 is accurate. Yes, the state would take the abandoned property (money in your scenario), but it is held in trust for the actual owner. The state publishes lists of abandoned property (here in Texas it’s once a year in a Sunday paper in all the major cities, and it’s probably on the web all the time), and if you can demonstrate the property is yours (normally identifying yourself is sufficient), the state gives it back to you.

    Unfortunately, I don’t think this is a good scenario for your overall argument.

  • http://home.telepath.com/~hrothgar/telae_tabulae.html Timothy Phillips

    Oklahome, too has passed a version of the Uniform Unclaimed Property Act. The theory of this law is that the state holds unclaimed property for its owner. In practice, however, no one is fooled. The statute explicitly allows the state, in its management of the property, to rely on the odds that a large proportion of the property will never by claimed. Hence the word “escheat”, though eschewed by the statute itself, was used by a justice of the Oklahoma Supreme Court in its description of the statue’s effects. The same word, “escheat”, continues to be used in the financial services industry to refer to the act of turning unclaimed property over to the state.

  • Jardinero1

    Prof. Lessig explains how inefficient the current copyright scheme is with regard to orphan works and how one may utilize them again. The problem I have with any of his solutions: copyright registries, opt-in/opt-out is that they layer another set of rules or another bureaucracy on top of the current copyright scheme. Adding a layer doesn’t simplify or make things more efficient, quite the contrary.

    The solution to orphan works is simple, if not yet politically tenable: reduce copyright periods to something really reasonable like ten or fifteen years. I would rather wait forever for that to happen than to tinker around with the law and potentially end up with something even worse than we have today. Beware unintended consequences.

    The issue with orphan works to me is a problem for the owner of the orphan work. No one else worried about it until a few years ago. Prof. Lessig defends the public service Google does alerting the public to the presence of these “lost works”. If it were merely altruism that motivated Google I would say bravo. But since Google wants to make commercial use of images from these works I say let Google go through the hassle and expense of tracking down the owner just like the rest of us. This is just another case of Google freeriding for its own ends. Sorry folks we might have to wait to see these orphan works. Don’t worry they won’t be reduced to ashes if we wait another five months or five years to find the owner.

  • http://ejnorman.blogspot.com Eric Norman

    I think point (1) gets to the heart of the matter. The essence of theft is that the rightful “owner” is denied the ability to exploit, use, or enjoy what they own.

    That’s why I titled a talk I do “Intellectual Property is an Oxymoron”. It’s impossible to steal knowledge.

    Any no, I’m not confusing knowledge with incentives, invention, expression of knowledge, effort, or anything else.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Eric, I think you’ll find it very possible to steal knowledge.
    Ask anyone who’s had their personal diary stolen, or even had their encyclopaedias stolen.

  • Chris S

    So, this publisher feels that copyrights are best treated as being akin to property? Not a stance I’d agree with, even for any copyrighted material of mine.

    Does this mean that the doctine of adverse possession can be applied to “property” that is left unused, untouched, and unmaintained? If you leave it out of print long enough, I can simply claim it as mine by publishing it myself?

    Come to think of it, this would solve the “orphan works” problem.

  • http://aharden.wordpress.com aharden

    Crosbie: Knowledge is in one’s mind. Information is what’s put in a personal diary or encyclopedias. I agree with Eric.

  • JerseyTom

    Bah! The correct analogy would have been for the “head honcho” to take a picture of the computer and show it to millions of people asking if they wanted to buy this computer, which isn’t for sale. Then go to Google saying, “Hey, I know you weren’t selling this computer but I now have 5,000 people that would all buy it. Won’t you reconsider? Think of how much money you can make!”

    And to complete the analogy, Google would sue the “head honcho”.

  • Daniel Khoo

    Head honcho is doing the “stealing” incorrectly. To properly compare with copyright, he should do it like this …

    Head honcho sees Google laptops. Head honcho steals/takes laptops. But hey, the original laptops are still there! It’s like a ghost/spirit in a movie. The act of taking it the laptops had created duplicate copies. So where there were only two laptops, there are now 4. Google still have their original 2 laptops, and head honcho has 2 others, exactly identical.

    This is how “stealing” copyrighted works are different from stealing everyday physical objects. It’s weird because the marginal cost of producing additional units are zero.

    I am not rich, but I have quite a lot of electronic equipment in my house (cause I am a geek). If anybody wants them, you’re all quite welcome to come to me house and “steal” them. I don’t mind. So long as I still have the original copy for my own use.

    I wouldn’t call ignoring copyright “stealing”. To me, stealing happens when an author submits a manuscript to an unscrupulous publisher, and is rejected. Five months later, he sees his book in a book store, but with somebody else credited as the author. He confronts the publisher, but they deny ever meeting him. That’s stealing.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    aharden,

    Ok, so by ‘knowledge’ you mean personal knowledge? Everything that lies within the mind? Like the knowledge you have that the Earth is round?

    Well, why didn’t you say earlier? Of course you can’t steal someone else’s knowledge from their mind.

    However, I thought we were talking about the knowledge in books and personal diaries. The words we term intellectual property.

    After all, copyright and patent don’t control what you can do within the confines of your mind, nor do they need to stipulate what other people are permitted to do there. Copyright and patent instead govern the thoughts we set down on paper or other medium, our intellectual works, our intellectual property and what we may do with it.

    Once we have intellectual property we have something that can be stolen. But, yes, whilst it remains solely within our minds, no thief can take it from us (except forgetfulness).

  • http://ejnorman.blogspot.com Eric Norman

    What’s written down in a diary is expression of knowledge. The last time I checked, copyright means what it says. I governs the act of making a copy of such expression. If I steal someone’s diary, that may be theft, but it’s not copyright infringement since no copies have been made. That’s the point that’s being made here.

    The example by Daniel Khoo above is called plagiarism. But that’s considered theft (at least in academia) because the author is being denied enjoyment of something. In particular, the author is being denied the ability to enhance her reputation by getting credit for her work.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Eric,

    You were talking about intellectual property being an oxymoron, and I inferred from your corollary that knowledge couldn’t be stolen, that you meant that intellectual property couldn’t be stolen.

    However, it now seems that by ‘knowledge’ you refer only to that which exists in one’s mind, and that of course, this cannot be stolen.

    It seems that at least we now agree however that ‘expressions of knowledge’ can be stolen. Would you term ‘expressions of knowledge’ as ‘intellectual works’ perhaps? And would you say that an author’s ‘intellectual works’ were their ‘intellectual property’? (especially, given they can be stolen)

    Remember that copyright has nothing to do with intellectual property except whether or not it can be copied – it doesn’t govern ownership of intellectual works. Copyright is a transferable intellectual property privilege (sometimes misnamed ‘intellectual property right’), and is consequently a valuable commercial property – an IP related property.

    I’m glad that we undesrtand that to steal a personal diary constitutes theft and is not a matter of copyright infringement. Similarly, making an unauthorised copy of a book you’ve purchased is not theft, but is copyright infringement.

    However, if whilst visiting a friend’s house, you make a copy of their diary without their permission, this copy is their intellectual property as much as their diary. Taking this copy without their permission is also theft, since you are stealing their intellectual property – it doesn’t matter that they still have the original – they no longer have their copy that you made without permission.

    Because, to the inexperienced eye, copyright infringement and IP theft are so similar, IP maximalists like to conflate the two together.

    The books you write or purchase and the copies you (or a nefarious guest) make are your intellectual property. Copyright simply says you can only make/distribute copies with the copyright holder’s permission.

    Thus, copyright suspends some of your property rights as a commercial incentive to the copyright holder.

    Copyright is unethical.

    Copyright should be abolished.

    Our intellectual property rights should be restored.

  • http://nondocs.blogspot.com Daniel Freiman

    “Because, to the inexperienced eye, copyright infringement and IP theft are so similar, IP maximalists like to conflate the two together.”

    I’ve seen many experienced individuals conflate the two. And since I’m a layman in this area, I don’t always do much better (which is a fact that may be evident in the rest of this comment).

    The distinction between property and IP gets ever more tricky when the two are innately intertwined. For instance architects own their designs. So if I buy a house, does someone else own the IP to the design, and how does that limit my use of my own house? Try explaining that to the average person.

    As far as experts go, I’ll just say this: virtual property.

    It seems to me that a system this confusing cannot be efficient because too much time is going to be spent in court figuring out what the system is.

  • Todd Jonz

    (Attached below is a copy of a comment I appended to Mr. Charkin’s blog post regarding this stunt.)

    Mr. Charkin and I are very far apart in our beliefs regarding the differences between real and intellectual property. But rather than confront him with the same arguments he’s heard before, allow me for a moment to adopt his point of view and propose a hypothetical situation.

    I’m an amateur trombonist with a keen interest in the music of Tommy Pederson. Much of Tommy’s music was written for “Hoyt’s Garage”, an institution in the ’60s that brought studio trombonists from throughout the L.A. area to play together and challenge one another during their regular gatherings in trombonist Hoyt Bohannon’s garage. Some of Tommy’s music was self-published, some was published by third parties, and a large body remains unpublished. Original and illicit copies of many of Tommy’s works are in the possession of working trombonists today. Copies of these works are coveted by trombonists around the world.

    Tommy is dead now, and so is his wife. The status of the copyrights for these works is unknown, and numerous attempts to gain permission to publish these works have failed. These are “orphaned” works — titles for which the market is so small that there is little motivation for a publisher to maintain them in its catalog. Publishers who continue to list Tommy’s works in their catalogs as permanently out of print do not respond to inquiries regarding republication rights.

    If it’s fair to say that Google is “stealing” from publishers, would it not also be fair to say that these publishers have “kidnapped” the works of Tommy Pederson and are holding them against their will? Would it be appropriate for me to “kidnap” one of Mr. Charkin’s children (assuming he has any) for an hour or so to make my point? After all, he never explicitly told me *not* to kidnap his child.

    If there are brownie points to be awarded in this misguided bit of theatricality, they most certainly go to Google for not having Mr. Charkin arrested and charged with petty larceny. Had they done so, perhaps Mr. Charkin would do a better job of discriminating between theft and misuse of intellectual property.

  • Todd Jonz

    (Attached below is a copy of a comment I appended to Mr. Charkin’s blog post regarding this stunt.)

    Mr. Charkin and I are very far apart in our beliefs regarding the differences between real and intellectual property. But rather than confront him with the same arguments he’s heard before, allow me for a moment to adopt his point of view and propose a hypothetical situation.

    I’m an amateur trombonist with a keen interest in the music of Tommy Pederson. Much of Tommy’s music was written for “Hoyt’s Garage”, an institution in the ’60s that brought studio trombonists from throughout the L.A. area to play together and challenge one another during their regular gatherings in trombonist Hoyt Bohannon’s garage. Some of Tommy’s music was self-published, some was published by third parties, and a large body remains unpublished. Original and illicit copies of many of Tommy’s works are in the possession of working trombonists today. Copies of these works are coveted by trombonists around the world.

    Tommy is dead now, and so is his wife. The status of the copyrights for these works is unknown, and numerous attempts to gain permission to publish these works have failed. These are “orphaned” works — titles for which the market is so small that there is little motivation for a publisher to maintain them in its catalog. Publishers who continue to list Tommy’s works in their catalogs as permanently out of print do not respond to inquiries regarding republication rights.

    If it’s fair to say that Google is “stealing” from publishers, would it not also be fair to say that these publishers have “kidnapped” the works of Tommy Pederson and are holding them against their will? Would it be appropriate for me to “kidnap” one of Mr. Charkin’s children (assuming he has any) for an hour or so to make my point? After all, he never explicitly told me *not* to kidnap his child.

    If there are brownie points to be awarded in this misguided bit of theatricality, they most certainly go to Google for not having Mr. Charkin arrested and charged with petty larceny. Had they done so, perhaps Mr. Charkin would do a better job of discriminating between theft and misuse of intellectual property.

  • Todd Jonz

    Apologies for the double post. HughesNet’s throughput sucks. ;-)

  • anon

    While there’s no denying that the honcho fails to recognize the difference between physical and intellectual property, what if his stunt were purely of the intellectual type?

    Say he cloned the hard drive of a Google employee’s laptop in a few seconds, put it back so that the employee still had full use of the laptop, uploaded the contents a fully searchable website and left a notice saying that “if you want to have a particular email/document/source file/photo etc. removed from this website please email me and I’ll take it down in a few days.”

    That would have been far more intrusive than losing the physical laptop. I’m not saying that Google book search is doing exactly that but there is a balance here that both sides are struggling to reach.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    Daniel,

    You ask “Does someone else own the IP to the design?”.

    Your use of ‘IP’ here is a contraction of ‘Intellectual Property Rights’, which itself is a corruption of ‘Transferable IP Related Privileges, such as copyright and patent’.

    So, the architect may well own the IP related privilege of copyright on the design as embedded within your house, or on the design as embedded within any blueprints you possess, or the privilege of patent on any mechanisms (drawbridge, etc.).

    How architectural designs are ‘protected’ will no doubt vary between jurisdictions, but in principle, your house including the intellectual work of its design is your property. So, the IP to your house is yours, but some of your rights to the IP in your house have been suspended and granted to its architect.

    IP: yours.
    IPR: mostly yours, but ‘right to copy’ suspended.
    IP privileges: your ‘right to copy’ is now the architect’s privilege.

    So what IPR remain yours? Unless you’ve contracted otherwise, you may sell/lease any of your house including its designs/blueprints without needing permission, and can relocate or demolish it if you fancy. The architect has no right of access (even if your house is unique, and the architect wants to remeasure, because they’ve lost their copy of its plans).

    Obviously, you can’t make copies of the plans (or alterations except on the original plans), and probably can’t even hire another architect to reproduce plans of your house. The architect’s permission may even be required for anyone to take photos of your house. One day they may even be able to force you to erect high external curtains around your house to prevent you making the design of your house available to the public (you will no doubt happily pay for a licence to avoid this). I wouldn’t be surprised if some architects have even tried preventing someone modifying their house on the shaky basis that this might constitute ‘preparing a derivative work’ (given it might be quite tricky without producing derivative plans), or even violation of the architect’s moral right to integrity (which it wouldn’t).

    If a man’s house is his castle (domus sua cuique est tutissimum refugium), then I’d recommend all homeowners arm their barbicans, man their battlements, and re-assert the restoration of their property rights to their houses’ designs, i.e. the right to make copies and derivatives thereof.

    As for ‘virtual property’, well that’s a looking glass into a whole new universe of legislative misadventure.

  • acs

    It is definitely correct to state that the Head Honcho did not make an appropriate analogy. Despite this he has made a good point about Googleprint and its scanning of books under copyright into its own personal search database. Perhaps a better analogy would be to take the laptops and copy the information from them and then put it into a database for public use. Of course, the legal difference between the two exists where that copied information is confidential. I am fully aware of the implications of same.

    This may not be a responsible move but it is a sign of the pressure placed on publishers whose livelihood depends on IP Rights as a result of google actions. I do agree that it is over the top and there are fair use arguments to consider.

    Theft of personal property may be wrong but it is a sign of a wider problem.

  • three blind mice

    But the relevant line marking the difference here is this: “Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.”

    jefferson’s eloquence compensates well for his appalling ignorance on the matter of patents and copyrights. “no one possesses the less, because every other possesses the whole it it” is a very elegant way of describing what economists crudely call a non-rivalrous economic asset. it has nothing to do with IP.

    IP is NOT a non-rivalrous assest. it is quite the contrary. consider if the lighted candle in jefferson’s hand provides him with competitive advantage in the market for the production of light, lighting another’s DECREASES the value of his candle.

    IP – where it provides competitive market advantage – is inherently rivalrous. it cannot be freely shared without diminishing the value to its creator.

    IP gives jefferson the incentive to bring his light to the world without risk that he will loose the market value of it.

    Physical property and the intangible property we call copyright are different.

    yes. physical property is a fixed limited resource. no one is making any more land – which is why it must be owned in perpetuity.

    intangible property is, on the other hand, an ever expanding resource of limitless dimension – which is why ownership of one tiny piece should not present any problem to anyone. anyone can make more.

    And rather than continue sophomoric debates about who is “stealing” what, it’s about time that policymakers — and industry leaders — took responsibility for the inefficiency that copyright is.

    right on! IP rights are being raped, pillaged, and plundered like Rome before the visigoths. arguing over the definintions of rape, pillage, and plunder isn’t going to save rome.

    the wonton destruction of IP must first be stopped. the only inefficiency in copyright is inefficiency in enforcement.

    si roma perit vad salvum est?

  • David Fedoruk

    Regarding the stollen diary; I vehemently dissagree that the stollen diary is stolen knowledge. It is only stolen knowledge if the writer of the diary somehow is releived of the memories written in the diary. This is clearly not the case. The only theft that has occurred is the theft of a book. The book is only the container in which the ideas were stored. Those ideas only become knowledge when it is read. No physical book is Intellectual Property, it is real property because it has form and substance.

    Books happen to be very convenient storage devices for information which is why we give publishers some **limited** rights to publish as a monopoly. We want new ideas to be propagated. Publishers seem to have lost sight of the limited nature of their rights to this monopoly.

    Cheers,
    David

  • David Fedoruk

    Regarding the stolen diary; I vehemently disagree that the stolen diary is stolen knowledge. It is only stolen knowledge if the writer of the diary somehow is releived of the memories written in the diary. This is clearly not the case. The only theft that has occurred is the theft of a book. The book is only the container in which the ideas were stored. Those ideas only become knowledge when it is read. No physical book is Intellectual Property, it is real property because it has form and substance.

    Books happen to be very convenient storage devices for information which is why we give publishers some **limited** rights to publish as a monopoly. We want new ideas to be propagated. Publishers seem to have lost sight of the limited nature of their rights to this monopoly.

    Cheers,
    David