The last person you’d expect to speak out against the Google Book settlement with the Authors Guild which will make available the contents of millions of orphan books in digital form is Harvard law professor and free-culture advocate Lawrence Lessig. In a lengthy essay in The New Republic he calls the settlement a “path to insanity” that will be “culturally asphyxiating,” but not for the reasons you might think.
Lessig believes the problem lies not so much with the settlement itself or Google, as it does with copyright law. But after pouring over the complex language of the 165-page settlement, he believes more than ever before in the need to overhaul copyright law for the Internet era (a theme he’s hit on before). Here is the gist of the problem as he explains it:
The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.
By breaking up books into different licensable parts, Lessig fears that we are going to encounter the same problem with books that we do today with film. He gives the example of documentary films which are sometimes nearly impossible to restore or preserve in digital form because the rights to every song and clip of archive footage need to be cleared again. This is an artifact of the types of licensing contracts that became the norm for film, where each constituent part of a work carries its own copyrights into perpetuity, making it more difficult down the road to update into digital form or pass along as a piece of shared culture. Up until now, books for the most part are treated as one single work.
Yet the language of the Google Books settlement threatens to break books up into different constituent parts. The result is that you might be reading from a medical book on your iPhone in a hospital waiting room trying to figure out what’s wrong with your child, as Lessig did, only to find that a crucial illustration or table is missing because it is under a different license. As Lessig notes:
In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs).
It’s not so much that Lessig thinks the Google settlement is bad as far as it goes. He actually gives Google some props on the settlement, which makes up to 20 percent of even protected works accessible for free. (Google has argued vehemently that the settlement is a good deal for authors and the public alike, and wants to change it as little as possible). Lessig writes:
There is much to praise in this settlement. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than “fair use” would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not.
But it sets a bad precedent for how we treat digital copyrights. We must balance those rights, as we always have, with the right to access and pass on our culture. Lessig calls the settlement a path to insanity because he fears it puts us on the road to making the consumption of culture “a legally regulated event”:
When you send your children to a library to write a research paper, you do not want them to have access to just 20 percent of each book they need to read. You want them to be able to read all of the book. And you do not want them to read just the books they think they would be willing to pay to access. You want them to browse: to explore, to wonder, to ask questions–the way, for example, people explore and wonder and ask questions using Google or Wikipedia. We had a culture where an enormous chunk of cultural life was proliferated and shared without most of us ever calling a copyright lawyer.
We are about to change that past, radically. And the premise for that change is an accidental feature of the architecture of copyright law: that it regulates copies. In the physical world, this architecture means that the law regulates a small set of the possible uses of a copyrighted work. In the digital world, this architecture means that the law regulates everything. For every single use of creative work in digital space makes a copy. Thus–the lawyer insists–every single use must in some sense be licensed. Even the scanning of a book for the purpose of generating an index–the action at the core of the Google book case–triggers the law of copyright, because that scanning, again, produces a copy.
And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.
Regulating copies simply makes no sense in a digital world where every piece of content is made up of bits because those bits must be copied before they can be consumed or shared. There is no digital equivalent of the library or used book store where culture can be preserved and found by anyone. The Google Book settlement has special provisions for libraries and academics, but Lessig warns against relying “upon special favors granted by private companies (and quasi-monopoly collecting societies).” Rather, he proposes something more radical and far-reaching. A complete overhaul of copyright law which would include a mandatory registry of who owns what (to make it easier to track down copyright holders to ask for permission to use a work) and protection of a work as whole rather than protection to its constituent parts.
“Once a work is made,” he writes, “we need to recognize that it has its own claim within our culture.” If permission is granted once to use a song for a film or an illustration in a book, then after a period of time (he suggests 14 years), the rights holder for any one part should not be able to “control the whole.” And as for the registry, he suggests that it be operated by private companies much like Internet domain registries are today, with the rules for registering being mandated by law. It would be up to copyright holders to register otherwise their works pass into the public domain.
These are extremely reasonable suggestions to which I am sure the copyright lobby will strenuously object. But this debate needs to happen and Lessig gives us a good place to start. How would you change copyright law for the digital age?
Lawrence Lessig is a Professor of Law at Stanford Law School and founder of the school’s Center for Internet and Society. Prior to joining the Stanford faculty, he was the Berkman Professor of Law at Harvard Law School, and a Professor at the University of Chicago. He clerked for Judge Richard Posner on the 7th Circuit Court of Appeals and Justice Antonin Scalia on the United States Supreme Court. For much of his career, Professor Lessig focused on law and...
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