The Scholar’s Space

Doug Lichtman, law professor at UCLA, is conducting interviews with legal scholars and practitioners on topics at the heart of today’s most important intellectual property cases. These interviews are freely available. The current podcast focuses on the Constitutionality of the damages claims, as raised by Charlie Nesson’s (Harvard Law School) defense of Joel Tanenbaum, one of the many accused of infringing music copyrights by virtue of his activity on a p2p network. It’s a snap to listen to one of the podcasts, or download it for later, and he offers CLE credit (Continuing Legal Education) for those lucky lawyers who practice in California, Texas, New York and a few other states, soon to be more. Because Doug’s is mostly a legal audience, he certainly does get down into the nitty-gritty of, some would say, esoteric legal fine points, but because these come up in the context of newsworthy intellectual property cases, the discussions will have a wider appeal. Check out the archive of past interviews. New ones are posted monthly.

Getting down into the nitty-gritty is the stuff of daily grind for attorneys, but that focus does suggest that questions of policy, direction and the broader perspective may get short shrift. Indeed, the Nesson-Tannenbaum-RIAA discussion does focus relentlessly on the details of the Constitutionality of statutory damage awards. Nesson seems to me to be motivated by policy concerns (as most of us are who think the current iteration of the copyright statute is way out of whack), but in court, that’s supposed to be the last thing you bring up, sort of like icing on the cake. The main ingredients have got to be strong legal case precedents, logical argumentation, and creative use of same applied to your facts. For CLE, focus on such details makes good sense. But it can seem a lot like rearranging deck chairs on the Titanic to someone (me) who thinks that the whole copyright framework is it’s own worst enemy as those responsible for making our laws resist efforts to adapt copyright more meaningfully to the digital networked environment. But lawyers love to argue about fine points, even if the ship is going down. Who’s got time to notice?

But that’s just one interview. They may not all be only about fine points. I looked at upcoming events and one of two currently described for coming months is about several areas of creativity that thrive with weak forms of protection. Doug suggests there are lessons to be learned from these creative fields for the areas where copyright owners think there’s just no alternative to strong and long copyrights. Sort of policy-ish.

Anyway, worth a listen! And if you want the CLE, definitely worth a listen.

Well, it’s happened. I am totally radicalized. A confluence of events, of course, but there were two triggers, both occurring yesterday, that shot me over the edge. First, I read Larry Lessig’s response to John Conyers’ defense of his support for the publishers’ Kill NIH-OA bill. I have followed Lessig’s blog for quite a while now, and I watch his video presentations on whatever. I’ve heard the message any number of times. He’s consistent — creative, articulate, logical, compelling — but always consistent. He does not get off-script. He stays calm about it all. He’s under control. Not in the Conyers response. Go read it. Over-the-top ending blast.

Not 5 minutes later (hey, I was primed), I received a short email from the editor at a journal that’s considering publishing an article I wrote recently, and on which I presented at the mid-winter ALA (a preconference workshop sponsored by ACLTS) and at a Scholarly Publishing symposium sponsored by Texas A&M University last month (video), letting me know that two references in the article, a 17 word quote from the Beatles’, Revolution (”You say you want a revolution, well, you know, we all want to change the world”) which I located in one of 130,000 sites Google turned up in response to a search, Beatles’ Revolution lyrics, and a graphic representation of all the influences acting upon the publishing world in the clever form of a very complex subway map (I found it at Thad McIlroy’s website, The Future of Publishing where he points to its creator at Soybits), needed permission. Having observed that the map flew at lightening speed all over the world, probably within hours of its posting, I had explicitly indicated that I would rely on fair use to use it. It didn’t even occur to me to say anything about a 17 word quote — I just assumed any such quote would automatically be a fair use. No dicussion needed. It’s sort of this thing I have about the importance of relying on the only exception to the madness that copyright has come to represent. And nearly 20 years of practicing law. Most of it in copyright. Most of that in fair use.

I hit reply, said I would delete both, and hit send. I jumped up from my computer, bounded up the stairs and started to get ready for work. Only I was shaking, terribly irritated, way out of the moment, rattling off cases, reasons, arguments in my mind …

The best teachers aren’t always in the classroom. In an instant, I switched it all off. Taking Dr. Jill Taylor’s advice to heart (”My Stroke of Insight”), I concentrated on how it felt (physiologically!) to be that upset, how it felt to be shaking, how it felt to breathe shallow and fast, in short, how bad these reactions to a few words felt. And I calmed down. I am quite thankful to have a good, serviceable brain that can marshal an argument, that can defend a position and that can project consequences and understand implications. And that can, given some space, step back from all that and see the other side, the editor’s side of this story (risk aversion, publishing norms, relying on lawyers for advice, big ship, hard to turn it on a dime, and, oh yeah, the publisher is in the UK …), with compassion for her and for myself.

But that’s not where it ends.

Later that day I gave a talk for a professor’s class in the College of Education. Mostly IT Master’s and PhD students. This was to be, with normal ongoing modification, the same basic talk I’ve been giving for at least 10 years. Copyright 101. It did not go at all like any other version I have ever presented. It started out normally, but at slide 2/28, where I stop to ask the audience what they want to know about, to be sure that I’ll effectively address their interests in the talk (tailoring my emphases to the group’s concerns), I got this very unusual question. Not unusual in copyright circles, but unusual for a student. He wanted to know how the law got to be the way it was.

Kaboom!

With all the tact I could muster, I basically gave Lessig’s spiel, which I’ve never uttered a word of, ever. It’s like I was channeling him or something, though the foundation of my understanding of what went wrong with copyright sweeps in Jessica Litman, Siva Vaidhyanathan, Jamie Boyle, Peter Jaszi, and on and on. The discussion, with more questions and comments, rolled on under its own power. I felt just swept along. But, I stayed civil, maybe even being a tad too tactful. Someone actually commented on how sweetly I put what was actually a stinging rebuke; another commented that it seemed hard not to call the individuals involved in a process corrupt when the process is corrupt and destroys trust in the insitution. A fine line to draw. A lawyer’s kind of line. Not a normal person’s kind of line. This corruption of the institution, but not necessarily the individuals, is Lessig’s main point, but it is a very difficult one for him or anyone else to make (he’s constantly having to correct misunderstandings of this point). Normal people don’t make these distinctions. If the only way a Congressman’s support for a bill makes any sense at all is if you follow the money, well, that’s just wrong, no matter what you call it.

We easily could have spent the whole hour and a half on this subject, it was a very lively discussion, but finally the moderator suggested that we continue the thread at the end, time permitting. And I went back to, “Copyright begins at the moment that a work is first fixed in a tangible medium of expression.”

But the topics of legislative decision-making, of sensitivity to our own and others’ levels of risk tolerance and aversion, of the long-term effect of parallel copyright universes such as those created through open-source software and Creative Commons licensing, all of those and more, got woven into the talk in a way I never could have consciously planned. Copyright 101 became Copyright Policy and Advocacy 101 because the students were interested, because I was personally pitched for it, and because that’s all my copyright heroes talk about. It’s just out there, and in here. So much for Copyright 101.

And just now I read a startling post on Lessig’s site: in the correction to misunderstanding of his main point I link to above, he admits this:

But I’ll confess, this isn’t a role I enjoy. It is my nature (nothing to be proud of, but this is the reality) to ingratiate, not criticize. I don’t have the courage of a Stallman. Too many of my cycles are focused on how or whether what I do will affect whether others like me. I am more comfortable on the inside than on the outside. And when we tried to find allies in this battle, I totally understood those who didn’t have the stomach for this. “Coward” is a name I’ve given myself more often than any other.

But I really really mean what I said at the end of the first post on this “baseless smear”:

This is no time to play nice.

It really pains me to think that Lessig believes himself a coward because he’s got normal, human feelings and no real stomach for criticizing someone he admires. And yet he manages more often than I do certainly, to step up to the plate and do what he thinks the situation demands of him, whether he’s feeling good while he does it or not. I am pretty pleased to know that he is, in fact, human, and not a God. And that Lessig, the human can do what needs doing (maybe not at all times and every time, but way more than many of us), admit how hard it is, but stay on the path. What a wonderful thought, and feeling. Adds the perfect context to the experiences I had yesterday, making me appreciate the ability to step out of character a bit and be braver. Lessig can do it. I can do it.

This month’s SPARC Open Access Newsletter contains an excellent overview of both past and current commentary regarding the reintroduction of Conyers’ Orwellian-ly named, “Fair Copyright in Research Works Act.” Suber sums up both the reasons to be optimistic and reasons to be concerned. Much has changed since the last go-round. I urge anyone interested in continuing public access to publicly funded research in the US to read the Newsletter this month. Much is at stake, beyond the NIH mandate itself. Not that OA in general will suffer or be set back, but the US role in furthering public access will be set back, as well as the public access itself to publicly funded US research. Our best should be out there along with the rest of the world’s. It won’t be if our seemingly quite short-sighted US publishers have their way.

Georgia’s post on Kindle made some very good points. Interested readers may be willing to follow Ariadene’s thread a little longer and  look at an article in Slate which discusses some features of the new version.  Many  people shared Georgia’s irritation at the high clunkiness quotient in the original product, but AMAZON seems to have gone a long way to overcome at least some of these dorky things, and the new item is bigger, thinner and sleeker-looking than Kindle 1. But, some of the other complaints remain in force. The gadget is still pricey, pegging in at about $350 US, give or take.  And the DRM doesn’t seem any looser than on the last go-round.  The Kindles, pere et fils, are will probably go into some kind of technology museum one day, but the technology in itself is only part of the story, and not really the most interesting part either.  The Slate piece considers this side of things attentively.

Slate

Information Week  published a long article on other aspects of the e-book movement, including a speculation that AMAZON may turn out to be the victim of its own success and wind up cannibalizing itself. There is some danger, to AMAZON, that the various hand-held devices now around in great numbers will be modified by their manufacturers to allow downloading of e-books. Why should you buy an extra gadget, one that’s  pretty heavy and definitely not cheap, to read books on the commute or in the doctor’s office when you’ve got one with you that will do the same thing, perhaps not as well, but well enough for a few minutes reading here and there.  This is the best that many people can manage  nowadays, and this market may be the bigger one.

We’ll see.

The Stanford Center for Internet and Society runs the famed Fair Use Project, responsible for taking on a number of high-profile cases recently. The Center magnificently prosecuted Carol Shloss’ fight with the James Joyce estate to a beneficial settlement. I always recommend reading its details to worried scholars asking for advice about how to persuade reluctant (ie, risk-averse) publishers to accept a claim of fair use in scholarly commentary and criticism. Now the Center’s Anthony Falzone has turned his attention to another fair use case, one involving the transformation of an online photo of Barack Obama into a series of iconic posters, by artist Shepard Fairey.

There are cases all over the map on the issue of the extent to which an artist can build upon another’s work without permission. Historically, both in terms of process and product, art involves much more direct and literal appropriation than literature does, yet the same copyright rules apply to both. The issue will be the degree to which our courts are ready and willing to give fair use sufficient scope to accommodate transformational uses — even commercial ones — in a digital era. As the Washington Post story linked to above recounts,

To create his Obama poster (which he did in less than a week), Fairey grabbed a news photograph of the candidate off the Internet. He sought an Obama that looked presidential. “He is gazing off into the future, saying, ‘I can guide you,’ ” is how Fairey reads the image. The artist then simplified the lines and geometry, employing a red, white and blue patriotic palette (which he plays with by making the white a beige and the blue a pastel shade). He uses a lot of red along with boldface words: PROGRESS or HOPE or CHANGE.

The story goes on to note Fairey’s thoroughly non-traditional view of copyright:

Who knows how many do-it-yourself reproductions of Fairey’s Obama have been scanned off the Internet. “I have no idea. I think a lot,” says the artist, who put the image on the Web in a downloadable file. “I’ve seen it on stencils, fliers, shirts, Web sites, places we had nothing to do with.” Copyright infringement? No, no, no. “This is exactly what I wanted to happen.” This isn’t a limited-edition print. It’s unlimited. He charged $25 to $45 for the first runs of 950 posters, to pay for the printing of the all the rest, which were free. Fairey says he hasn’t made a dime off Obama nor does he think he has unfairly glommed onto the candidate.

The fair use debate is always about the scope of copyright itself, debated in terms of the role of the primary, some might say the only, meaningful limit on copyright. It will be a treat to watch it unfold.

I haven’t been all that enthusiastic about or interested in trying out the Kindle. I saw one shortly after they were introduced. It looked painfully clunky, but the person using it said she really liked it. She paid a lot for it, and from what I understood, the selection of books for it was not that great. But that’s to be expected for  a newly introduced product in this industry. Publishers seem to be really wary of putting their stuff out there where just anyone can get copies and do terrible things with them.

But my lack of interest was more basic than whether a book I wanted to read would be available anytime soon or whether the device lacked the elegance of the iPhone, or even it’s hefty price tag. It was the DRM. I just object, philosophically, to having my books tied to a specific vendor with a specific device. I felt the same way about DRM on music files. Never bought music from the iTunes store (geez, can that be true? not even one little song? you know, I just don’t recall ever buying one). I just bought a CD from time to time, ripped it immediately and loaded it onto my iPod and iPhone, and stored the disc away in case I needed to rip it again. Things happen to digital files.

But, when I learned that the Administrative office here at UT Austin’s Libraries had purchased one and that the Administrative staff were taking turns using it to get a feel for it, I decided to give it a try. Wouldn’t cost anything (even the download of a book or two would be paid for by the Libraries), and I do like to know firsthand about such things. So, I looked for several books that friends had recommended recently and not surprisingly, none of them was available. But finally, I hit upon Obama’s Audacity of Hope and thought that might be a nice read (it was). I finished it in about a week, and, to my surprise decided to download another, Thomas Friedman’s Flat, Hot and Crowded, which I’m about 1/3 of the way through now. I am recharging the battery, which says something right there. It lasted comfortably through one book but not two. It only takes about 2 or 3 hours to fully charge the battery though.

So here’s what I think: downloading the books whose owners are willing to make them available is quick and easy. The wireless connection is great. I can’t imagine any device that hopes to keep up not having its own ability to send and receive information. But that’s about where my praise ends.

I was ok with the screen readability and adjustable type size, but there are big tradeoffs with eInk. The flashing thing that happens every time you turn a page is really annoying; no backlighting is really annoying. You have to have external good light to read in.

I absolutely hated the way you go from page to page (the location and operation of the keys that one presses to make these functions happen): clunky doesn’t begin to describe it really. The design could not have been worse, at least not that I can imagine. You can barely touch the device without skipping to the next or a previous page. Building those keys into the edges of the device, practically top to bottom, is just plain stupid. And its angular edges give the device a hard, angular feel that I just didn’t like. It’s little keyboard has a rigid resistance that makes typing a chore. Well, it’s always a chore on any keyboard that small, but when you add in physical resistance to touch, it’s too much. Of course, there’s not much typing one would do on a Kindle. Sort of makes me wonder why the designers rejected a soft keyboard. Oh, wait a minute, that would suggest a touch-screen. Right.

That pretty much sums it up. The books need to be freed from DRM and the reader needs touch-screen technology. Get rid of all the buttons and that oh-so-1990’s move-the-cursor-up-and-down-the-page, line by line and click-on-a-line to select an item; make it easy and intuitive to highlight, bookmark, look up words, connect to the Internet for additional research. Oh, wait a minute, again. I think I’m describing my MacBook with touch-screen or an iPhone that’s a little bigger. Neither of which exists yet, but ought to.

So, from what I hear, a new Kindle will be announced Feb 9, a week from today. I’d advise a little imagination, a little bravery on the part of the publishers and Amazon: move to a DRM-less flowable text format for content; don’t try to freeze the form of the book at dawn of the 20th century digital (ie, nothing more than a static book in digital form; no real taking advantage of future possibilities); make the device cool and desirable by making it do more; make it easy to do whatever it is it does. Clunky boxy can’t stand to hold it NO; Slinky sexy beautiful can’t live without it YES.

Copyright in a sound bite? No. But remix in a sound bite? Absolutely. Lessig makes his point about the value of Remix by putting his and Colbert’s money where Lessig’s mouth is. Bite on this. Lessig shows the original clip of his interview on The Colbert Report, about 6 minutes (a bit painful to watch him up against a comedian), then links to a few of the first remixes. It only takes listening to or watching a couple to fully get it. This is so cool and fun and this is what all the fuss is about! What these folks have done would have been illegal without the permission Lessig orally provided, authorizing remixes of his interview (and later affixing a CC-BY license to the clip). Colbert eloquently states the party line: No one should ever remix my stuff unless I say so.

Of course there are lots more remixes. Lessig links to and discusses them at another of his blog posts. Do go check them out. You won’t need to read the book. Just kidding. The book is a great read. Read it!

I finished it a few days ago and sure enough, he makes 5 specific recommendations for how Congress could modify the law to stop the failed war on file sharing. But he also points out that CC licenses implement 4 of the 5 policies independently of Congressional action …

Congress could act. Congress should act. Congress may never act. I’m so tempted to say “so what” here, but Jamie Boyle’s faith in our ability to make the case keeps me from it. CC licenses require us, one at a time, to take a stand in favor of a more reasonable scope for the law. Congress could bring about the more reasonable scope in one fell swoop. I won’t hold my breath, but I won’t give up either, not so long as Jamie Boyle and Larry Lessig still think there’s reason to believe it’s possible. Either way, the market in remixes is going for it.

The latest edition of Peter Suber’s Open Access Newsletter includes a roundup of great news from 2008. There’s so much good news to report that he must say up front that he’s been selective, left out some things, and organized what he has into nine categories. And it is a lot to read. But it is so inspiring! It’s just what I needed to feel hopeful for 2009, that the momentum will carry forward.

Several of the items that were news to me were really surprising as well. Top among the surprises was this paragraph under heading 8, Books:

There were new OA textbook publishing initiatives from Flat World Knowledge, the Open University of Israel, and the Community College Open Textbook Project.  Florida became the first state in the US to approve an OA textbook program for use in its public schools.  The MakeTextbooksAffordable campaign released the Open Textbooks Statement to Make Textbooks Affordable, with signatures of 1,000+ professors from 300+ colleges in all 50 states.  StudentPIRGs launched a sign-on “Statement of Intent” for faculty to show their support for OA textbooks.  It also published a report recommending OA textbooks and criticizing TA digital textbooks for high prices, hobbling DRM, printing restrictions, and automatic expiration.

Having been a graduate student for the last 2 1/2 years and having used quite a few analog and digital textbooks, I see this industry as *way, way behind the curve* unable to take serious advantage of the digital networked environment. And I’ve heard that the negotiations with publishers to offer their texts in more innovative and more useful ways often fall flat if the publisher can’t be assured of making more money from the new model than he already makes from his existing strategy. Talk about innovator’s dilemma. This sets the stage perfectly for the upstarts who are willing to try new things because they don’t already have preconceived ideas about what they *ought* to be making right now from their existing customers. Have none of these folks read Christensen’s book, Innovator’s Dilemma? Their industry is positioned classically as the losing trajectory in the chart to the left. It shows how new technologies at first fail miserably to meet the needs of a firm’s current customers. Though their performance qualities fall so far below what current customers expect even at the low end of the market, they eventually improve through the process of sustaining innovation until they “break through” into the up-scale markets, directly competing with established firms for the same customers. Christensen documents this pattern in industry after industry. Publishing in general is following the pattern — like a puppy dog. Sad to see, but it’s frustrating as well.

Lessig’s latest, Remix, has been out for a couple of months now. I guess I didn’t rush to grab a copy because I follow his lectures closely (he posts videos) so I thought I probably knew what he was going to say in the book — and it was not available immediately in a CC licensed version. Had it been CC’d up front, I would have read it immediately. This actually was the biggest news about his book for me: 6 months before the CC version would be released. I’m sure there’s a reason why he agreed to this, but I can’t imagine what it is. Wait a minute, yes I can. Maybe I’m wrong, but I think maybe his publisher was taking a little baby-step towards a remixed business model, a step Lessig’s in a position to encourage, and so he did.

In fact, this particular kind of remix is precisely what I found to be new about the book now that I’ve relented, gone to BookPeople, my local “keep Austin Weird” (that is, buy local) endangered species of bookstore, and bought a copy (for $9.60 more than I would have paid at Amazon…) off of the wooden shelf to bring home, read, and put on my wooden shelf, which shelves I am running short of, and would just as soon not keep adding more shelves, but that’s none of the book publishing industry’s concern, is it? The book was offered for Kindle at Amazon, but I don’t want a Kindle. But back to remix, er, Remix.

The part of the book that’s new-to-me describes remixed businesses. He calls them hybrids (oh, I want one so bad but I’m determined to wait until the all-electric comes out in 2010), but they are really just examples of the mashups he lectures about, the creative combinations of video, voice, images and text that he celebrates so as the harbingers of new creativity. These mashup businesses combine aspects of traditional commercial economies (I do this because I want to make money) with aspects or expressions of traditional sharing economies (I may do this for a million reasons but expressly *not* to make money) to take advantage of aspects of the Web that the analog world alone can’t take advantage of, thus competing better, in a Clayton Christensen kind of “innovator’s dilemma” way. They are the hybrid upstarts that Lessig predicts will upend not only bricks-and-mortar competitors like BookPeople, but even Web competitors who are not taking advantage of what can be done in Web 2.0 that couldn’t be done in Web 1.0.

Lessig gives plenty of examples of these hybrid business models that combine commercial aspects with sharing aspects, but he goes much further. He analyzes the elements that make them better competitors, their aspects that actually define what it means to make the combination, sort of an entry-level criteria recipe:

1. taking advantage of the Long Tail
2. taking advantage of the information that people freely leave about what they like, what they do and what they want, all over the place online
3. allowing others to innovate on your platform (i.e., letting others turn what you create into a building block for their own businesses).

In the world of book publishing, who is doing this? Right now?

So, it’s not that pairing a CC licensed version with a physical copy option is a hybrid. Look at the list above and ask yourself whether any of the criteria are met. It’s just that at the stage of experimentation the publishing industry is at right now, CC/buy at the same time represents a step in the right direction, and CC later/buy now is sort of sizing up that step. It takes a little bit of advantage of what people who love to share can do for the publisher — increase sales. But it leaves a lot of innovation on the table, it still leaves the industry quite vulnerable to the upstart that figures out how to compete better online, how to take better advantage of what networking (hybridizing commercial and sharing economies) can do that not-networking can’t.

Well, I haven’t finished the book. From what I understand, the best part is at the end where he suggests how copyright law ought to be changed to facilitate this advance. So, more later.

So, have you visited James Boyle’s book blog yet to check out his latest, The Public Domain? I mentioned it a few days ago, and am now about a third of the way through it. I’m reading it in pdf form on my Mac in a beta screen reader called Stanza. A bit buggy, but I like it. As I mentioned, the book is CC licensed and for sale, at the same time, as Boyle’s blog explains.

Then, yesterday, on a list I subscribe to, Michael Carroll raised an interesting question for the publishers on the list that brought together Boyle’s book’s CC license, the Google/Publisher/Author settlement agreement and OA generally. Oh, Michael Carroll — he’s actually one of the people who appears on the little CC video explanation that Boyle links to from his book blog that explains why a CC license (in Boyle’s case, OA for a book) makes sense to authors (at :20 and again at 1:02, maybe further in). Again, if you haven’t had a look, please go check it out. It’s a great little, short, pithy explanation of CC licensing and very well-done. You could send the link to faculty who don’t have lots of time to figure out the future of scholarly publishing while they’re busy, busy, busy with their scholarship…

But back to the story. So Michael asked this question:

I know that the issue of monograph publishing and the sustainability of university presses has been an oft-discussed topic on this list.

I’d be interested in … reactions to the question of whether academic authors and publishers might not do better tha[n] the Google settlement route by taking the open access route for scholarly monographs.

Case in point.  James Boyle’s new book has just been released under a Creative Commons license by Yale University Press.

According to publicly available sales statistics, it’s doing quite well.

According to Amazon, yesterday, its Sales Rank was: #3,103 in Books (See Bestsellers in Books) Popular in these categories: (What’s this?)

#1 in   Books > Professional & Technical > Law > Intellectual Property
#1 in   Books > Nonfiction > Law > Intellectual Property
#4 in   Books > Nonfiction > Social Sciences > Sociology > Culture

So, is that an aberration?  If so, why?  If not, why doesn’t this point the way to a more profitable future for the public and university presses?

I’m not a publisher, but I certainly am interested in the future of publishing, especially scholarly publishing, and I wonder the same thing as Michael. Is he asking, “should a publisher just OA its books to raise sales of the print copies in lieu of participating in the settlement infrastructure or entering an agreement with Google?” I’m not so sure that it has to be either/or, does it? Maybe Michael doesn’t think it is an either/or either.

I think it can be both — for three reasons right now, and another hypothetical reason in the future:

1. NOW: Any publisher can take the chance Yale took with Jamie’s book and allow CC licensed downloads and sales at the same time
2. NOW: Any publisher can also have an agreement with Google about including its books in Book Search through the Partner Program (see below)
3. NOW: Any publisher without an agreement with Google can have its already published books displayed as it sees fit (previews up to 100%) in Google Book Search pursuant to the settlement terms, and it can opt out of algorithmic settlement pricing, and set its own price for digital download, why not at $0 (4.2(b)(i)(1)).
4. FUTURE: The settlement terms provide for a possible future print on demand option, and I would assume that, again, for books published before 2009, for a copyright owner without an agreement with Google, 100% preview (ie, totally readable online) could be combined with a free download, which could be combined with a paid print on demand option. But that’s not currently offered.

The Google settlement is, as a practical matter, only really about pre-2009 out of print (commercially unavailable) books. If you have a new book, the best way to get involved with Google Book Search is by becoming part of its publishing partners program. You negotiate a contract with Google. Google markets and helps you sell your book. Every major US publisher has already done this (*while they were suing Google*). Lots of scholarly presses have too (UT Press has an agreement, for example; maybe Yale does too but I don’t know). Those publishers with agreements with Google can have their negotiated terms *instead of* the settlement terms for all their books. Any publisher or author with a book currently in print and without an agreement with Google will find that those in print books are automatically opted out of display uses. Nada: no one sees anything if the book is identified as relevant to a search unless you specifically direct Google to change your in print work to a “display book.” It is assumed that if your book is in print, you want to define the terms upon which it is offered to the public. It’s your baby. It’s all up to you.

So, what is keeping at least the scholarly publishers from doing what Yale did? Maybe a bit scared. Actually, as Michael knows, lots of them are doing what Yale did, sort of. They have OA projects. They are experimenting, just like Yale is. Those who are not experimenting in some form or fashion are probably making plans to. But it will just take some time to get up the courage, based on good results of experiments, to finally figure out more broadly workable new business models for scholarship that do not prevent people from accessing the work as a means for paying for production and distribution. OA just makes too much sense to not be among the options that get a lot of attention. If you can cover your costs from some sales, while everyone else who won’t or can’t buy reads for free, and those who pay are happy to pay for the added whatever it is that you add that they pay for, what’s not to like? OA will work because OA already works.

So, one more brick *out of* the wall! I would say we should get set to see considerable progress in scholarly publishing this coming year, progress towards OA and CC licensing as viable alternatives to, but not replacements for, settlement pricing (that is, Google’s algorithmic pricing), rightsholder pricing (traditional sell only copies), collective institutional support for publishing and distribution, author pays/institution pays one-item-at-a-time, and some things no one’s thought of yet.