The Scholar’s Space

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.

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.