Mass Digitization

Last [summer, June, 2007], at the International Creative Commons Summit in Dubrovnik, Croatia, Lawrence Lessig made a stunning announcement: he is going to retire from copyfighting and take up a new career, fighting for a new issue. He's going to stay involved with Creative Commons as its CEO, but from now on, he's working to fry a bigger fish: the corruption that leads countries to make bad copyright laws and other regulations, even when they know that the laws are bad for their society (Doctorow, 2007).

Lessig explained on his blog,

Indeed, I'm convinced we will not solve the IP related issues until these "corruption" related issues are resolved...that until a more fundamental problem is fixed, "the [free culture] movement" can't succeed ... (Lessig, 2007)

Lessig seemed to have given up on changing copyright policy by working within the legal structure that supposedly implements it, our federal courts and legislature. It seemed a logical move, in alignment with his actions in the wake of the Eldred loss in the Supreme Court, when he co-founded the Creative Commons, a mechanism enabling members of the public, both creators and users of others works, to legally reject the policy choices implemented by Congress and rubber-stamped by the Court. But this time he named a culprit that everyone can understand - money. He said that money speaks too loudly in Washington, so loudly that no other voice can be heard.

So he is off to fight the good fight, and no one wishes him more success than I do. But I am nevertheless not at all confident that enough will change in Washington in the next 10 years to head off the very "no brainer" Lessig referred to as a paradigmatic example of the senselessness, from a policy perspective, of Congressional actions in response to moneyed interests:

Think, for example, about term extension. From a public policy perspective, the question of extending existing copyright terms is, as Milton Friedman put it, a "no brainer." As the Gowers Commission concluded in Britain, a government should never extend an existing copyright term. No public regarding justification could justify the extraordinary deadweight loss that such extensions impose. Yet governments continue to push ahead with this idiot idea -- both Britain and Japan for example are considering extending existing terms. Why? (Lessig, 2007)

And, indeed, so will the U.S. be considering extending copyright terms another 20 years in just a short nine years from now (2017). What I want to suggest to you today is that the creative landscape of 2017 will be very different from what existed in 1997 when we last considered this issue, that mass digitization projects are playing both a direct and in indirect role in ushering in those changes, and that the changed landscape may necessitate a fresh approach to the question of what difference another 20 years might make. That, however, is a topic for another day. Today I am going to focus on the fact that the landscape will change, but not because Congress will have implemented a different public policy by then. Rather, Congress has already become sidelined and will likely stay that way, by its own modus operandi: "negotiations among the stakeholders" are a sham. We can no longer pretend that locking the powerless in a room with the powerful will produce a compromise in the public interest. And when the powerful are locked in a room with each other, the result is no better. There are moneyed interests on both sides of the policy debate surrounding the scope and length of copyright protection, and neither of them has a clear advantage anymore. Something else has got to become the tie-breaker.

Copyright industries live and die by their bottom lines. Some of the money that has trouble achieving what it used to in Washington has begun to bet on the strengths of the digital networked environment rather than against them. This paper describes how that change is beginning. The story does indeed start with Congress but quickly turns to what's taking place outside the law, in the markets. Then it looks to the courts, where mass digitization is having its most direct effect on copyright law. Even here, however, the markets are, again, the bigger story. I'll close with Google Book Search, an important part of any path forward.

The paper has three parts:

1. Congress and the public interest: reactions to an outdated and wrongheaded legal framework for the digital world

• Inability to achieve policy objectives in Congress forces all sides to accept pragmatic work-arounds
  • Consumer resistance to industry reliance on old business models continues in the vacuum created by Congressional inability to consider alternative schemes to compensate copyright owners for materials shared on p2p networks (Netanel 2003, Fisher 2004; A Better Way Forward 2008; von Lohmann 2008)
  • Corporate pioneers help to normalize demand for freer access and use (Jobs, 2007)
  • Creative Commons licenses respond to problems posed by overbroad protection (Doctorow, 2007)
  • De facto standards for reasonable searches for copyright owners emerge out of unsuccessful efforts to obtain permission (freethebooks, 2007; Proffitt, et al, 2008), and in the wake of failed attempts to pass Orphan Works legislation (Sanger, 2006)

2. Business begins to learn to live with the unbounded

• Twentieth century business models give way to approaches more in harmony with the networked environment's strengths
  • Attention itself becomes the scarce commodity, demanding a restructuring of business models predicated on a vanishing scarcity of information goods
  • Convenience and free access win over even stalwart copyright maximalists
  • DRM has not only failed to deliver what it promised, it has held back the industries that relied on it (von Lohmann, 2007; Lehman, 2007, as reported in Geist, 2007)

3. The courts expand fair use -- the only truly flexible copyright rule -- to deal with the evolving reality, but again, important progress is more often made in the markets than in court.

• Courts take advantage of opportunities presented by those who challenge Google's search engine business practices to re-energize the value of public benefit as a central inquiry in fair use analyses
• The search engine cases bode well for the fair use claim for Google Book Search indexing, but even without clear legal authority, market experiments in openness show progress

In short, the copyright industries' inability to implement their visions of copyright policy in an environment where polarized forces nullify nearly every effort since the DMCA, has created a legislative vacuum that the industries themselves are filling by practical adaptation to the realities of the digital networked environment. They didn't come to this strategy willingly. They have been resisting it for more than a decade. They will be, in the end, forced by consumer resistance, mass digitization projects and the sheer enormity of the mass of freely available online content, to come to grips with their futures.

Mass digitization projects have played a significant role in bringing about these changes, though they only directly affect copyright law itself where wealthy corporate entities like Google take a stand to push the envelope in court. Mass digitization's indirect effect is perhaps the bigger story, especially if, as I suspect, the effect may be to render parts of the Copyright Act less relevant to those who at one time depended upon those provisions for the economic life of their industries (Harper, forthcoming). Congress (and its manner of addressing public policy) may continue to be sidelined by the growth of a highly accessible and usable public domain, an immense corpus of implicitly and explicitly licensed materials on the Web, and the fact that corporate and individual copyright owners are beginning to depend less on controlling and counting and selling digital copies. As these trends grow, as I think they will, it appears that copyright law may in some respects be simply getting out of the way. If it doesn't, it's going to be sidestepped.