Mass Digitization

The story of mass digitization's effect on copyright law and policy is not over by any means. So far, it is a story of confronting fears, of one step forward and two steps back in some cases. Sometimes the only way to calm fears is just to stand up, stride towards the light switch, and show that there's nothing to be afraid of. Unfortunately, many of the first to stand up end up as casualties as they try to show us that it will be ok. But luckily for the rest of us, there were those who were willing to take chances to test the waters. Today, there is wider recognition of the necessity for change, and the opportunity that it offers, than existed when mp3.com came up with a very good idea about how to make money in a digital networked environment. And even just three and a half years after it began digitizing library books for its online Book Search, Google enjoys the benefit of mounting evidence that with respect to the evolution of business models that rely on exposure rather than armor, there was nothing to be afraid of. The jury is still out on the price we may pay for the risks Google takes by taking advantage of the ambiguities of the fair use doctrine to force a deal with publishers and authors.

But businesses are not the only ones facing down fear. Libraries sat on the sidelines for awhile, but the temptation to stand up was too great for many. When you are entrusted with your and other countries' cultural heritage, and your raison d'être is to preserve it for the benefit of the public, many are concluding that we simply have to digitize it and put it online. For free. The masses of digitized materials get used, get viewed, get watched, get listened to. Along with the other tens of billions of pages of free content on the Web, they create a growing corpus of materials that compete with pricy, locked-down commercial offerings for our time and attention, and they are winning a lot of the time, and they compete for the honor of inspiring new works. Now what is scary is not getting seen, read or listened to (Graham, 2006; Seiff, 2007).

Policy and law are slow to change, and that's as it should be. All the planets will have to line up just right for Congress to change copyright law in the future, even decades after the public and business communities have worked out better ways to take advantage of the networked environment. I won't be holding my breath (if I'm still breathing at all). But I'm not too worried about it either. Just as content that isn't online "won't exist," laws that no one needs or uses won't exist either.

But there is one area of the law where Congressional paralysis would actually be a very good thing. As Lessig has highlighted, in nine years, copyright owner industries, and quite likely authors as well, newly enriched by the discovery by the public of their heretofore out of print works, will be asking Congress for another extension to the copyright term. We'll need to do much more than rehash old arguments about why that might not be a good thing, because the creative environment in 2017 will be very different from the environment when Congress last addressed the question. What difference will another 20 years make? We need to be able to effectively answer that question, or we're going to find out the hard way.