Mass Digitization

Although mass digitization project proponents do not, for the most part, have the power to change the law (with the obvious exception of the Google Book Search project), their collections, once digitized and made freely available, contribute to the pressure on content industry business models. As more and more images of valuable cultural artifacts, more documents, more books, audio files, and videos of every type can be accessed freely on the Internet (as in free beer *and* free speech, combining Richard Stallman's famous distinctions), the viability and utility of sequestering digital information behind toll barriers such as contractual subscriptions or DRM decreases (Shampaier, Mazar, Ariely, 2007) . The legal props that copyright owners believed they needed to safely place their assets on the Web have in fact prevented them from learning what they needed to know to really thrive in the networked environment (von Lohmann, 2007; Rogers, 2007). Those who experimented early are well along the way to understanding how to create revenue streams without controlling, counting and getting paid for copies, in other words, without relying on their right to exclude others from making and distributing digital copies of their works (Anderson, 2008; Kelly, 2008).

Almost 14 years ago John Perry Barlow (1994) wrote a provocative article in Wired, "The economy of ideas," in which he famously reiterated what Stewart Brand had earlier observed, that "information wants to be free." Much of what he had to say about the futility of ignoring the profound difference between information in physical forms and information in bits was nothing short of brilliant to those who agreed with him, but complete insanity for everyone else. His pronouncements were widely denounced as so much drivel. Among his claims were several predictions that have proven accurate, some, of course, that have not, and a series of suggestions about other ways creators could make a living without charging for digital copies of their works. His specific suggestions were not necessarily a road map for the future, but the idea that creative individuals would need to find other ways to make a living besides controlling, counting and being paid for digital copies was very perceptive. And indeed, that's what we see happening today. In November, 2007, Glyn Moody of the Guardian. Ltd. interviewed Mike Masnick, founder of Techdirt, who makes many of the same claims Barlow made in 1994. But this time he's describing in the present tense what his and other companies are doing today ("The trick then is recognizing (sic) what other things that infinite good makes more valuable.") Chris Anderson (2008) and Kevin Kelly (2008) offer similar examples. How did Barlow's ideas go from insane drivel to practical advice from one businessperson to another about how to adapt to the digital networked environment?

Reality cannot be ignored for long. There have been important admissions by those within our government who were champions of the music, entertainment and publishing industries' claims before Congress, that the industries had to strengthen protections in order to survive in the digital environment. Mary Beth Peters, Register of Copyrights, admitted in a public discussion at a University of North Carolina symposium on Intellectual Property/Creativity and the Innovation Process in 2005 that Congress had made a mistake in extending the term of copyright by 20 additional years in 1998 (Doctorow, 2006). Bruce Lehman, considered the architect of the anti-circumvention provisions of U.S. copyright law, admitted in March 2007 at a conference hosted by McGill University (Canada) that, "our Clinton administration policies didn't work out very well" and "our attempts at copyright control have not been successful" (Lehman, 2007, reported in Geist, 2007). Geist notes that Lehman went on to suggest we are entering a "post-copyright" era.

The admissions don't stop there, however. Ian Rogers, Yahoo! Music's General Manager, spoke to a group of music industry representatives in October 2007 and very clearly articulated his complete rejection of DRM. Even where admissions are not express, we see the failure of this approach reflected in actions. The year 2007 was a watershed for abandonment of DRM and contract in favor of digital delivery on the open Web: we saw Steve Jobs deliver Thoughts on Music, his opinion on the future of the music industry, which did not include DRM, EMI thereafter agreed to sell unprotected mp3s on iTunes and at Amazonmp3 (Arrington, 2007; Amazonmp3, 2007), the New York Times abandoned its subscription model for access to content on the Web (Riley, 2007), and in the fall, the Wall Street Journal followed suit (AP, 2007) as TV stations finally began to reluctantly offer some programming on the Web (O'Hear, 2007). What will 2008 bring?

It has taken almost 10 years of indulging their desperate, wishful thinking for the content industries' strategy (to lock up their works in order to offer them online) to begin to collapse. What has proven the film, music and publishing industries wrong is simply the success of unprotected, freely available works, over and over and over again. As Ian Rogers said, convenience wins (2007). Take news, for example. News is everywhere. If you want a story on Hillary Clinton's reaction to her rival's strategy of "ganging up on her" at October's debate, you can choose from 1,343 similar offerings. This is the kind of information that greets me every morning on Google News: Top Stories. Want an article on that same subject that you have to pay for? Even if it is in the New York Times? Didn't think so ... And the New York Times finally accepted that in the fall of 2007 (Riley, 2007).

In an environment where immense amounts of information, entertainment, news, video, books, articles, nearly anything you want to know about or explore, is available for free at the touch of a few keys, selling digital copies is just not a great idea (Anderson, 2007; Shampanier, 2007). So little by little the industries that claimed they couldn't survive without DRM and copyrights that last forever, are beginning to let go of the idea of using their eternal copyrights and DRM to control and count and sell digital copies. The Web's ease of publishing, library, cultural institutions and commercial mass digitization projects, user-created content, and plain old-fashioned public resistance are putting pressure on 20th century business models. Freely available content does not have to be *as good as* the New York Times, though there is excellent content online for absolutely free. It does not have to be *as good as* a Hollywood movie, though, again, there is excellent entertainment available online for free. Media whose owners impose a charge for access to a digital copy and therefore must erect barriers of time, effort, expense and inconvenience in the way of their would-be users must compete for users' time and attention against TONS OF LEGAL FREE STUFF. If media companies want some part of our limited time and attention, the lesson is that they ought not make it harder for us to give it to them, than to give it to everyone else. That's the story.

Now wait a minute, you're no doubt saying. What about movies and books? They are for sale, and even for rent, one copy at a time, as usual. What about subscription databases in libraries? What about digital copies on iTunes, and ebooks? What about Rhapsody and DRMd subscription services? Yes, you are correct. Today. Clearly, we're only beginning the transition. We have almost, but not quite, turned the corner on the phase of active denial (Linksvayer, 2008; Sandoval, 2008). The industries are acknowledging and even acting upon the evidence that life is possible without DRM and contractual barriers.