Category Archives: copyright

the economics of open content

For the next two days, Ray and I are attending what hopes to be a fascinating conference in Cambridge, MA — The Economics of Open Content — co-hosted by Intelligent Television and MIT Open CourseWare.

This project is a systematic study of why and how it makes sense for commercial companies and noncommercial institutions active in culture, education, and media to make certain materials widely available for free–and also how free services are morphing into commercial companies while retaining their peer-to-peer quality.

They’ve assembled an excellent cross-section of people from the emerging open access movement, business, law, the academy, the tech sector and from virtually every media industry to address one of the most important (and counter-intuitive) questions of our age: how do you make money by giving things away for free?
Rather than continue, in an age of information abundance, to embrace economic models predicated on information scarcity, we need to look ahead to new models for sustainability and creative production. I look forward to hearing from some of the visionaries gathered in this room.
More to come…

lessig in second life

Wednesday evening, I attended an interview with Larry Lessig, which took place in the virtual world of Second Life. New World Notes announced the event and is posting coverage and transcripts of the interview. As it was my first experience in SL, I will post more on the experience of attending an interview/ lecture in a virtual space. For now, I am going to comment upon two quotes that Lessig covered as it relates to our work at the institute.

Lawrence Lessig: Because as life moves online we should have the SAME FREEDOMS (at least) that we had in real life. There’s no doubt that in real life you could act out a movie or a different ending to a movie. There’s no doubt that would have been “free” of copyright in real life. But as we move online things that were before were free now are regulated.

Yesterday, Bob made the point that our memories increasingly exist outside of ourselves. At the institute, we have discussed the mediated life, and a substantial part of that mediation occurs as we continue to digitize more parts of our lives, from photo albums to diaries. Things we once created in the physical world now reside on the network, which means that it is being published. Photo albums documenting our trips to Disneyland or the Space Needle (whose facade is trademarked and protected) that one rested within the home, are uploaded to flickr, potentially accessible to anyone browsing the Internet, a regulated space. This regulation has enormous influence on the creative outlets of everyone, not just professionals. Without trying to sound overly naive, my concern is not just that speech and discourse of all people are being compromised. As companies become more litigious towards copyright infringement (especially when their arguments are weak), the safe guards of the courts and legislation are not protecting its constituents.

Lawrence Lessig: Copyright is about creating incentives. Incentives are prospective. No matter what even the US Congress does, it will not give Elvis any more incentive to create in 1954. So whatever the length of copyright should be prospectively, we know it can make no sense of incentives to extend the term for work that is already created.

The increasing accessibility of digital technology allows people to become creators and distributors of content. Lessig notes that with each year, the increasing evidence from cases such as the Google Book Search controversy show the inadequacy of current copyright legislation. Further, he insightfully suggests to learn from the creations that young people produce such as anime music videos. Their completely different approach to intellectual property informs the cultural shift that is running counter to the legal status quo. Lessig suggest that these creative works have the potential to inform policy makers that these attitudes are moving toward the original intentions of copyright law. Then, policy makers hopefully may begin to question why these works are currently considered illegal.
The courts’ failure to clearly define an interpretation of fair use puts at risk the discourse that a functioning democracy requires. The stringent attitudes towards using copyrighted material goes against the spirit of the original intentions of the law. Although, it may not be a role of the government and the courts to actively encourage creativity. It is sad that bipartisan government actions and courts rulings actively discourage innovation and creativity.

ESBNs and more thoughts on the end of cyberspace

Anyone who’s ever seen a book has seen ISBNs, or International Standard Book Numbers — that string of ten digits, right above the bar code, that uniquely identifies a given title. Now come ESBNs, or Electronic Standard Book Numbers, which you’d expect would be just like ISBNs, only for electronic books. And you’d be right, but only partly. ESBNs, which just came into existence this year, uniquely identify not only an electronic title, but each individual copy, stream, or download of that title — little tracking devices that publishers can embed in their content. And not just books, but music, video or any other discrete media form — ESBNs are media-agnostic.
“It’s all part of the attempt to impose the restrictions of the physical on the digital, enforcing scarcity where there is none,” David Weinberger rightly observes. On the net, it’s not so much a matter of who has the book, but who is reading the book — who is at the book. It’s not a copy, it’s more like a place. But cyberspace blurs that distinction. As Alex Pang explains, cyberspace is still a place to which we must travel. Going there has become much easier and much faster, but we are still visitors, not natives. We begin and end in the physical world, at a concrete terminal.
When I snap shut my laptop, I disconnect. I am back in the world. And it is that instantaneous moment of travel, that light-speed jump, that has unleashed the reams and decibels of anguished debate over intellectual property in the digital era. A sort of conceptual jetlag. Culture shock. The travel metaphors begin to falter, but the point is that we are talking about things confused during travel from one world to another. Discombobulation.
This jetlag creates a schism in how we treat and consume media. When we’re connected to the net, we’re not concerned with copies we may or may not own. What matters is access to the material. The copy is immaterial. It’s here, there, and everywhere, as the poet said. But when you’re offline, physical possession of copies, digital or otherwise, becomes important again. If you don’t have it in your hand, or a local copy on your desktop then you cannot experience it. It’s as simple as that. ESBNs are a byproduct of this jetlag. They seek to carry the guarantees of the physical world like luggage into the virtual world of cyberspace.
But when that distinction is erased, when connection to the network becomes ubiquitous and constant (as is generally predicted), a pervasive layer over all private and public space, keeping pace with all our movements, then the idea of digital “copies” will be effectively dead. As will the idea of cyberspace. The virtual world and the actual world will be one.
For publishers and IP lawyers, this will simplify matters greatly. Take, for example, webmail. For the past few years, I have relied exclusively on webmail with no local client on my machine. This means that when I’m offline, I have no mail (unless I go to the trouble of making copies of individual messages or printouts). As a consequence, I’ve stopped thinking of my correspondence in terms of copies. I think of it in terms of being there, of being “on my email” — or not. Soon that will be the way I think of most, if not all, digital media — in terms of access and services, not copies.
But in terms of perception, the end of cyberspace is not so simple. When the last actual-to-virtual transport service officially shuts down — when the line between worlds is completely erased — we will still be left, as human beings, with a desire to travel to places beyond our immediate perception. As Sol Gaitan describes it in a brilliant comment to yesterday’s “end of cyberspace” post:

In the West, the desire to blur the line, the need to access the “other side,” took artists to try opium, absinth, kef, and peyote. The symbolists crossed the line and brought back dada, surrealism, and other manifestations of worlds that until then had been held at bay but that were all there. The virtual is part of the actual, “we, or objects acting on our behalf are online all the time.” Never though of that in such terms, but it’s true, and very exciting. It potentially enriches my reality. As with a book, contents become alive through the reader/user, otherwise the book is a dead, or dormant, object. So, my e-mail, the blogs I read, the Web, are online all the time, but it’s through me that they become concrete, a perceived reality. Yes, we read differently because texts grow, move, and evolve, while we are away and “the object” is closed. But, we still need to read them. Esse rerum est percipi.

howl page one.jpg Just the other night I saw a fantastic performance of Allen Ginsberg’s Howl that took the poem — which I’d always found alluring but ultimately remote on the page — and, through the conjury of five actors, made it concrete, a perceived reality. I dug Ginsburg’s words. I downloaded them, as if across time. I was in cyberspace, but with sweat and pheremones. The Beats, too, sought sublimity — transport to a virtual world. So, too, did the cyberpunks in the net’s early days. So, too, did early Christian monastics, an analogy that Pang draws:

…cyberspace expresses a desire to transcend the world; Web 2.0 is about engaging with it. The early inhabitants of cyberspace were like the early Church monastics, who sought to serve God by going into the desert and escaping the temptations and distractions of the world and the flesh. The vision of Web 2.0, in contrast, is more Franciscan: one of engagement with and improvement of the world, not escape from it.

The end of cyberspace may mean the fusion of real and virtual worlds, another layer of a massively mediated existence. And this raises many questions about what is real and how, or if, that matters. But the end of cyberspace, despite all the sweeping gospel of Web 2.0, continuous computing, urban computing etc., also signals the beginning of something terribly mundane. Networks of fiber and digits are still human networks, prone to corruption and virtue alike. A virtual environment is still a natural environment. The extraordinary, in time, becomes ordinary. And undoubtedly we will still search for lines to cross.

defending the creative commons license

interesting question came up today in the office. there’s a site, surferdiary.com, that reposts every entry on if:book. they do the same for several other sites, presumably as a way to generate traffic to their site and ultimately to gather clicks on their google supplied ads. if:book entries are posted with a creative commons license which allows reuse with proper attribution but forbids commercial use. surferdiary’s use seems to be thoroughly commercial. some of my colleagues think we should go after them as a way of defending the creative commons concept. would love to know what people think?

another view on the stacey/gamma flap

For an alternative view of Lisa’s earlier post … i wonder if Gamma’s submission of Adam Stacey’s image with the “Adam Stacey/Gamma” attribution doesn’t show the strength of the Creative Commons concept. As i see it, Stacey published his image without any restrictions beyond attribution. Gamma, a well-respected photo agency started distributing the image attributed to Stacey. Isn’t this exactly what the CC license was supposed to enable — the free-flow of information on the net. perhaps Stacey chose the wrong license and he didn’t mean for his work to be distributed by a for-profit company. If so, that is a reminder to all of us to be careful about which Creative Commons license we choose. One thing i’m not clear on is whether Gamma referenced the CC license. They are supposed to do that and if they didn’t they should have.

google book search debated at american bar association

Last night I attended a fascinating panel discussion at the American Bar Association on the legality of Google Book Search. In many ways, this was the debate made flesh. Making the case against Google were high-level representatives from the two entities that have brought suit, the Authors’ Guild (Executive Director Paul Aiken) and the Association of American Publishers (VP for legal counsel Allan Adler). It would have been exciting if Google, in turn, had sent representatives to make their case, but instead we had two independent commentators, law professor and blogger Susan Crawford and Cameron Stracher, also a law professor and writer. The discussion was vigorous, at times heated — in many ways a preview of arguments that could eventually be aired (albeit under a much stricter clock) in front of federal judges.
The lawsuits in question center around whether Google’s scanning of books and presenting tiny snippet quotations online for keyword searches is, as they claim, fair use. As I understand it, the use in question is the initial scanning of full texts of copyrighted books held in the collections of partner libraries. The fair use defense hinges on this initial full scan being the necessary first step before the “transformative” use of the texts, namely unbundling the book into snippets generated on the fly in response to user search queries.

…in case you were wondering what snippets look like
At first, the conversation remained focused on this question, and during that time it seemed that Google was winning the debate. The plaintiffs’ arguments seemed weak and a little desperate. Aiken used carefully scripted language about not being against online book search, just wanting it to be licensed, quipping “we’re just throwing a little gravel in the gearbox of progress.” Adler was a little more strident, calling Google “the master of misdirection,” using the promise of technological dazzlement to turn public opinion against the legitimate grievances of publishers (of course, this will be settled by judges, not by public opinion). He did score one good point, though, saying Google has betrayed the weakness of its fair use claim in the way it has continually revised its description of the program.
Almost exactly one year ago, Google unveiled its “library initiative” only to re-brand it several months later as a “publisher program” following a wave of negative press. This, however, did little to ease tensions and eventually Google decided to halt all book scanning (until this past November) while they tried to smooth things over with the publishers. Even so, lawsuits were filed, despite Google’s offer of an “opt-out” option for publishers, allowing them to request that certain titles not be included in the search index. This more or less created an analog to the “implied consent” principle that legitimates search engines caching web pages with “spider” programs that crawl the net looking for new material.
In that case, there is a machine-to-machine communication taking place and web page owners are free to insert programs that instruct spiders not to cache, or can simply place certain content behind a firewall. By offering an “opt-out” option to publishers, Google enables essentially the same sort of communication. Adler’s point (and this was echoed more succinctly by a smart question from the audience) was that if Google’s fair use claim is so air-tight, then why offer this middle ground? Why all these efforts to mollify publishers without actually negotiating a license? (I am definitely concerned that Google’s efforts to quell what probably should have been an anticipated negative reaction from the publishing industry will end up undercutting its legal position.)
Crawford came back with some nice points, most significantly that the publishers were trying to make a pretty egregious “double dip” into the value of their books. Google, by creating a searchable digital index of book texts — “a card catalogue on steroids,” as she put it — and even generating revenue by placing ads alongside search results, is making a transformative use of the published material and should not have to seek permission. Google had a good idea. And it is an eminently fair use.
And it’s not Google’s idea alone, they just had it first and are using it to gain a competitive advantage over their search engine rivals, who in their turn, have tried to get in on the game with the Open Content Alliance (which, incidentally, has decided not to make a stand on fair use as Google has, and are doing all their scanning and indexing in the context of license agreements). Publishers, too, are welcome to build their own databases and to make them crawl-able by search engines. Earlier this week, Harper Collins announced it would be doing exactly that with about 20,000 of its titles. Aiken and Adler say that if anyone can scan books and make a search engine, then all hell will break loose and millions of digital copies will be leaked into the web. Crawford shot back that this lawsuit is not about net security issues, it is about fair use.
But once the security cat was let out of the bag, the room turned noticeably against Google (perhaps due to a preponderance of publishing lawyers in the audience). Aiken and Adler worked hard to stir up anxiety about rampant ebook piracy, even as Crawford repeatedly tried to keep the discussion on course. It was very interesting to hear, right from the horse’s mouth, that the Authors’ Guild and AAP both are convinced that the ebook market, tiny as it currently is, is within a few years of exploding, pending the release of some sort of ipod-like gadget for text. At that point, they say, Google will have gained a huge strategic advantage off the back of appropriated content.
Their argument hinges on the fourth determining factor in the fair use exception, which evaluates “the effect of the use upon the potential market for or value of the copyrighted work.” So the publishers are suing because Google might be cornering a potential market!!! (Crawford goes further into this in her wrap-up) Of course, if Google wanted to go into the ebook business using the material in their database, there would have to be a licensing agreement, otherwise they really would be pirating. But the suits are not about a future market, they are about creating a search service, which should be ruled fair use. If publishers are so worried about the future ebook market, then they should start planning for business.
To echo Crawford, I sincerely hope these cases reach the court and are not settled beforehand. Larger concerns about Google’s expansionist program aside, I think they have made a very brave stand on the principle of fair use, the essential breathing space carved out within our over-extended copyright laws. Crawford reminded the room that intellectual property is NOT like physical property, over which the owner has nearly unlimited rights. Copyright is a “temporary statutory monopoly” originally granted (“with hesitation,” Crawford adds) in order to incentivize creative expression and the production of ideas. The internet scares the old-guard publishing industry because it poses so many threats to the security of their product. These threats are certainly significant, but they are not the subject of these lawsuits, nor are they Google’s, or any search engine’s, fault. The rise of the net should not become a pretext for limiting or abolishing fair use.

google on the air

Open Source’s hour on the Googlization of libraries was refreshingly light on the copyright issue and heavier on questions about research, reading, the value of libraries, and the public interest. With its book-scanning project, Google is a private company taking on the responsibilities of a public utility, and Siva Vaidhyanathan came down hard on one of the company’s chief legal reps for the mystery shrouding their operations (scanning technology, algorithms and ranking system are all kept secret). The rep reasonably replied that Google is not the only digitization project in town and that none of its library partnerships are exclusive. But most of his points were pretty obvious PR boilerplate about Google’s altruism and gosh darn love of books. Hearing the counsel’s slick defense, your gut tells you it’s right to be suspicious of Google and to keep demanding more transparency, clearer privacy standards and so on. If we’re going to let this much information come into the hands of one corporation, we need to be very active watchdogs.
Our friend Karen Schneider then joined the fray and as usual brought her sage librarian’s perspective. She’s thrilled by the possibilities of Google Book Search, seeing as it solves the fundamental problem of library science: that you can only search the metadata, not the texts themselves. But her enthusiasm is tempered by concerns about privatization similar to Siva’s and a conviction that a research service like Google can never replace good librarianship and good physical libraries. She also took issue with the fact that Book Search doesn’t link to other library-related search services like Open Worldcat. She has her own wrap-up of the show on her blog.
Rounding out the discussion was Matthew G. Kirschenbaum, a cybertext studies blogger and professor of english at the University of Maryland. Kirschenbaum addressed the question of how Google, and the web in general, might be changing, possibly eroding, our reading practices. He nicely put the question in perspective, suggesting that scattershot, inter-textual, “snippety” reading is in fact the older kind of reading, and that the idea of sustained, deeply immersed involvement with a single text is largely a romantic notion tied to the rise of the novel in the 18th century.
A satisfying hour, all in all, of the sort we should be having more often. It was fun brainstorming with Brendan Greeley, the Open Source on “blogger-in-chief,” on how to put the show together. Their whole bit about reaching out to the blogosphere for ideas and inspiration isn’t just talk. They put their money where their mouth is. I’ll link to the podcast when it becomes available.
image: Real Gabinete Português de Literatura, Rio de Janeiro – Claudio Lara via Flickr

thinking about google books: tonight at 7 on radio open source

While visiting the Experimental Television Center in upstate New York this past weekend, Lisa found a wonderful relic in a used book shop in Owego, NY — a small, leatherbound volume from 1962 entitled “Computers,” which IBM used to give out as a complimentary item. An introductory note on the opening page reads:

The machines do not think — but they are one of the greatest aids to the men who do think ever invented! Calculations which would take men thousands of hours — sometimes thousands of years — to perform can be handled in moments, freeing scientists, technicians, engineers, businessmen, and strategists to think about using the results.

This echoes Vannevar Bush’s seminal 1945 essay on computing and networked knowledge, “As We May Think”, which more or less prefigured the internet, web search, and now, the migration of print libraries to the world wide web. Google Book Search opens up fantastic possibilities for research and accessibility, enabling readers to find in seconds what before might have taken them hours, days or weeks. Yet it also promises to transform the very way we conceive of books and libraries, shaking the foundations of major institutions. Will making books searchable online give us more time to think about the results of our research, or will it change the entire way we think? By putting whole books online do we begin the steady process of disintegrating the idea of the book as a bounded whole and not just a sequence of text in a massive database?
The debate thus far has focused too much on the legal ramifications — helped in part by a couple of high-profile lawsuits from authors and publishers — failing to take into consideration the larger cognitive, cultural and institutional questions. Those questions will hopefully be given ample air time tonight on Radio Open Source.
Tune in at 7pm ET on local public radio or stream live over the web. The show will also be available later in the week as a podcast.

google print on deck at radio open source

Open Source, the excellent public radio program (not to be confused with “Open Source Media”) that taps into the blogosphere to generate its shows, has been chatting with me about putting together an hour on the Google library project. Open Source is a unique hybrid, drawing on the best qualities of the blogosphere — community, transparency, collective wisdom — to produce an otherwise traditional program of smart talk radio. As host Christopher Lydon puts it, the show is “fused at the brain stem with the world wide web.” Or better, it “uses the internet to be a show about the world.”
The Google show is set to air live this evening at 7pm (ET) (they also podcast). It’s been fun working with them behind the scenes, trying to figure out the right guests and questions for the ideal discussion on Google and its bookish ambitions. My exchange has been with Brendan Greeley, the Radio Open Source “blogger-in-chief” (he’s kindly linked to us today on their site). We agreed that the show should avoid getting mired in the usual copyright-focused news peg — publishers vs. Google etc. — and focus instead on the bigger questions. At my suggestion, they’ve invited Siva Vaidhyanathan, who wrote the wonderful piece in the Chronicle of Higher Ed. that I talked about yesterday (see bigger questions). I’ve also recommended our favorite blogger-librarian, Karen Schneider (who has appeared on the show before), science historian George Dyson, who recently wrote a fascinating essay on Google and artificial intelligence, and a bunch of cybertext studies people: Matthew G. Kirschenbaum, N. Katherine Hayles, Jerome McGann and Johanna Drucker. If all goes well, this could end up being a very interesting hour of discussion. Stay tuned.
UPDATE: Open Source just got a hold of Nicholas Kristof to do an hour this evening on Genocide in Sudan, so the Google piece will be pushed to next week.

sober thoughts on google: privatization and privacy

Siva Vaidhyanathan has written an excellent essay for the Chronicle of Higher Education on the “risky gamble” of Google’s book-scanning project — some of the most measured, carefully considered comments I’ve yet seen on the issue. His concerns are not so much for the authors and publishers that have filed suit (on the contrary, he believes they are likely to benefit from Google’s service), but for the general public and the future of libraries. Outsourcing to a private company the vital task of digitizing collections may prove to have been a grave mistake on the part of Google’s partner libraries. Siva:

The long-term risk of privatization is simple: Companies change and fail. Libraries and universities last…..Libraries should not be relinquishing their core duties to private corporations for the sake of expediency. Whichever side wins in court, we as a culture have lost sight of the ways that human beings, archives, indexes, and institutions interact to generate, preserve, revise, and distribute knowledge. We have become obsessed with seeing everything in the universe as “information” to be linked and ranked. We have focused on quantity and convenience at the expense of the richness and serendipity of the full library experience. We are making a tremendous mistake.

This essay contains in abundance what has largely been missing from the Google books debate: intellectual courage. Vaidhyanathan, an intellectual property scholar and “avowed open-source, open-access advocate,” easily could have gone the predictable route of scolding the copyright conservatives and spreading the Google gospel. But he manages to see the big picture beyond the intellectual property concerns. This is not just about economics, it’s about knowledge and the public interest.
What irks me about the usual debate is that it forces you into a position of either resisting Google or being its apologist. But this fails to get at the real bind we all are in: the fact that Google provides invaluable services and yet is amassing too much power; that a private company is creating a monopoly on public information services. Sooner or later, there is bound to be a conflict of interest. That is where we, the Google-addicted public, are caught. It’s more complicated than hip versus square, or good versus evil.
Here’s another good piece on Google. On Monday, The New York Times ran an editorial by Adam Cohen that nicely lays out the privacy concerns:

Google says it needs the data it keeps to improve its technology, but it is doubtful it needs so much personally identifiable information. Of course, this sort of data is enormously valuable for marketing. The whole idea of “Don’t be evil,” though, is resisting lucrative business opportunities when they are wrong. Google should develop an overarching privacy theory that is as bold as its mission to make the world’s information accessible – one that can become a model for the online world. Google is not necessarily worse than other Internet companies when it comes to privacy. But it should be doing better.

Two graduate students in Stanford in the mid-90s recognized that search engines would the most important tools for dealing with the incredible flood of information that was then beginning to swell, so they started indexing web pages and working on algorithms. But as the company has grown, Google’s admirable-sounding mission statement — “to organize the world’s information and make it universally accessible and useful” — has become its manifest destiny, and “information” can now encompass the most private of territories.
At one point it simply meant search results — the answers to our questions. But now it’s the questions as well. Google is keeping a meticulous record of our clickstreams, piecing together an enormous database of queries, refining its search algorithms and, some say, even building a massive artificial brain (more on that later). What else might they do with all this personal information? To date, all of Google’s services are free, but there may be a hidden cost.
“Don’t be evil” may be the company motto, but with its IPO earlier this year, Google adopted a new ideology: they are now a public corporation. If web advertising (their sole source of revenue) levels off, then investors currently high on $400+ shares will start clamoring for Google to maintain profits. “Don’t be evil to us!” they will cry. And what will Google do then?
images: New York Public Library reading room by Kalloosh via Flickr; archive of the original Google page