Mortal Wombat

The Google Book Search copyright settlement seems likely to have far-reaching consequences, and I wish I had time to read the whole 141 page settlement right now.

Generally this seems like a really Good Thing. It will in theory eventually provide digital access through libraries and universities to most books not currently in-print. Books out of copyright will of course continue to be fully browsable through Google to anyone. But now a huge number of out-of-print books that are still under copyright will be available through libraries and universities, or by buying access to a specific book from Google. 63% of all Google revenue from this project goes to the Book Rights Registry for distribution to publishers and authors. This is a win-win — the public gets access to books not previously available, and publishers/authors receive money they wouldn’t otherwise have been receiving.

That said, it’s easy to get excited about the prospect of more access to knowledge. But this settlement will likely create a huge precedent for other agreements and future congressional / judicial action in this area. Consequently, I think it’s important to seriously consider potential downsides to the settlement.

Some potential concerns:

• Because of the circumstances of the settlement, this agreement between two private parties effectively makes new law that affects the entire industry, not just the parties involved in the lawsuit.

• Book Rights Registry - how much power will this organization have to decide new issues, such as rules about derivative works, openness to working with companies other than Google, and compensation to authors not party to the class-action lawsuit? Will the BRR be like BMI/ASCAP or more like ICANN?

• Too much control by Google? Will the BRR really be open to working with other companies / organizations?

• Is the Google book interface really the interface we want for reading all our digital books? What about being able to download them, print them out, put them on portable devices, etc?

• It apparently doesn’t cover ‘orphan works’ because, I think, the rights holders have to be known to the Book Rights Registry.

• There are a whole lot of issues that come up just between authors and publishers. e.g. are the publishers going to fairly distribute royalties to all authors (not just to those involved in the settlement and hence in the BRR)?

• This agreement creates a (mutually beneficial) contractual relationship, but notably fails to address Fair Use. How will this affect issues that come up in the future, such as derivative works, sharing snippets of searched-for in-print books, etc? And will it affect the Viacom v. Google (YouTube) suit?

Further reading:
Lawrence Lessig’s response
Susan Crawford’s response
Settlement Agreement (summary)
Settlement Agreement (full)

(My thoughts are also influenced by a panel I attended that included mention of this issue by Jonathan Zittrain, Alex Macgillivray, and others.)

Not everything is depressing in the world of civil liberties & Internet politics. I came across some tentatively good news today! We’ll see how it is applied as the case continues.

Someone actually decided to test the underused ‘misrepresentations’ section of the DMCA — the part that is supposed to limit the chilling effects of the DMCA. So far it has failed miserably to accomplish this goal, but in theory companies are liable for damages if they send cease & desist notices for things that they should know aren’t actually infringements of their copyright. So in this case a district judge sensibly ruled that companies must consider fair use before sending cease & desist letters. HOWEVER, it’s not clear whether this judge or any other will actually hold the companies accountable. The company will likely just get off by saying “oops.”

The part of Wired’s article that I found most galling though was this:
“Universal argued that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices.” Apparently Universal believes that intimidating large numbers of innocent people is better than actually considering whether or not the cease & desist notices they send are actually legitimate.

A quote I came across today from an old Lessig speech:

“The ideal that seemed so central to killing the closed society of yesterday—property—that ideal is now closing the open society of today. The same tool of freedom of yesterday is becoming a tool of control today. Not the same control, or the same control to as evil an end. But, nonetheless, a control on creativity and innovation; a shifting of that control from individuals to corporations; from anyone to the few.”

Since I didn’t include context here, I should point out that Lessig is not arguing for the abolition of either real or “intellectual” property. He is arguing for the importance of a commons to creativity and innovation, as well as the dangers of a permission society where content controllers exert perfect control over uses of content.

I’ll start this blog out by posting something I actually wrote up a few days ago.

So I went ahead and joined the “I want national wireless Internet” Facebook group the other day. I had been sitting on it for a bit, but it seems like it could be turning into a real movement of sorts. I was hesitant to join because neither the group nor the linked MoveOn petition contain information about exactly what they’re asking. [ed: MoveOn has since posted a letter to the FCC with details and lots of important endorsements!] Anyways, the idea is good. And I think I know what the actual Save Our Spectrum movement is about, even if I’m unclear as to what the Facebook and MoveOn groups are about. It’s about applying the following rules to the major upcoming spectrum auction. (This is the auction for the spectrum that will be released when traditional analog TV goes off the air.)

• establish a service rule for broadband services operating in the 700 MHz band that protects the consumer’s right to use any equipment, content, application or service on a non-discriminatory basis without interference from the network provider.

• allow third-party access to spectrum owned by other companies. This “open access” plan to include wholesale access to networks would enable more competitors to offer services
• institute anonymous bidding in auctions to lessen the possibility of bid signalling and bid rigging that studies found to have taken place in prior auctions.

So I’m curious what any Libertarian readers have to say to this. You must admit that the current broadband market could hardly be considered a “free market”. It is built on government giveaways and government protection. I really hesitate to see a few large cell phone companies controlling all of the potential wireless broadband spectrum. (Sprint already controls most of it, iirc.) Of course I don’t think the government should be its own ISP either, because that’s just asking for trouble. I wouldn’t mind the government providing the spectrum if it is able to somehow apply a fair policy allowing companies access to it. (This would work great if open (shared) spectrum really works, which I don’t know enough about yet.) But anyways, since the government has already announced that they are auctioning off the PUBLIC spectrum, is it really too much to ask that they require the highest-bid purchasers to follow certain rules that protect the PUBLIC interest. If there are no regulations, Sprint & co. will simply sit on it (blocking competition) or add it to their proprietary 3G / 4G networks.

Tangentially, and more generally, what do Libertarians have to say about the current tradition of treating wireless spectrum, ideas and creativity (so-called “IP”) as property? What about when these could operate as a commons, thus allowing more freedom and individual autonomy? Got to go or I’d write more now.