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.