Lessig is understandably excited about this case. It relies on the little glimmer of hope that Justice Ginsburg planted in Eldred v. Ashcroft, that the First Amendment really does have something to say about what Congress can do when it tinkers with the Copyright Act, but not in most cases. She said that the case of Eldred was not one where Congress had changed the traditional contours, so the “internal safeguards” such as fair use and first sale, were sufficient to keep things kosher with the Constitution. Et voila, Eldred lost. But now the court in Golan has indicated that a law that takes works long in the public domain, works that people have likely counted on being able to use freely, and just magically grants them a copyright lasting for the term they would have had if their owners had done everything they were supposed to do to get such a copyright (copyright notice, for example), goes too far. The Uruguay Round Agreements Act (URAA) from the General Agreement on Tarriffs and Trade (GATT) is that law.

All that said, there’s still that limitation: it is unconstitutional to the extent it conflicts with reliance on public domain status taking place before the URAA was passed and/or went into effect. That isn’t quite the same as saying that it is simply unconstitutional. And this is just round 1. The decision will be appealed, no doubt. But Lessig is right. We will no doubt see more of this case. At least it suggests that there is a limit to what Congress can do for copyright owners at the expense of some, if not all members of, the public.

It was and is a simple gift, that we let our creative works become the seeds of new creative life at some point. Why, I wonder, have we come to think that the point at which we give our creative wealth to the children of the future should be in the neighborhood of, on average, a century after we created them? How on earth did we get to the point where we believe that that’s a good idea?

Listen to the performance. Savor the complexity built around the simplicity. Beautiful isn’t it?

The January 5 NYT article by Motoko Rich, Google Hopes to Open a Trove of Little-Seen Books [sorry, I would link to it but NYT insists I register or login to access the article (it's 8:14 PM) and I don't do that kind of thing], included a really nice statistic that hints at one important aspect of the story’s ending. Or maybe it’s just a beginning. The stat carries a lot of the load for his story about tapping “a trove of information that had been locked away on the dusty shelves of libraries and in antiquarian bookstores.

According to Dan Clancy, the engineering director for Google book search, every month users view at least 10 pages of more than half of the one million out-of-copyright books that Google has scanned into its servers.

Google’s book search “allows you to look for things that would be very difficult to search for otherwise,” said Mr. Zimmer, whose site is visualthesaurus.com.

A settlement in October with authors and publishers who had brought two copyright lawsuits against Google will make it possible for users to read a far greater collection of books, including many still under copyright protection.

Read that again, the part that says that “every month users view at least 10 pages of more than half of the one million out-of-copyright books that Google has scanned into its servers.” Wow. Think about what that means for the life of most books on our “dusty shelves.” Actually, we don’t let them get dusty, at least not so far.

The overwhelming majority of our books can start up their long-silent engines and back out of the dead ends their normal commercial lives rolled them down. People are searching online, books are coming up high enough in the search results that people see them, and they are clicking on those book links and using even public domain works. I’ll dare to say, people seem to be reading public domain (ie, really, really, really old) books. At least 10 pages of over 1/2 of the million public domain books so far digitized — every month.

So, if you work in a library, take an old book off a shelf, any old book, and open its front cover and see how often it was checked out in the last 5 or 6 decades. Pick another book. And another. You can see where I’m going with this. I think these GBS “uses” are a wonderful thing for books, for their readers, their authors and, when we can get in-copyright works, their publishers or other copyright owners.

But Rich goes on to note how troubling this may be as well:

Some scholars worry that Google users are more likely to search for narrow information than to read at length. “I have to say that I think pedagogically and in terms of the advancement of scholarship, I have a concern that people will be encouraged to use books in this very fragmentary way,” said Alice Prochaska, university librarian at Yale.

Yale’s many libraries are fantastic places and all its librarians are lucky to work there. Alice, I think I understand what you are saying here, but look at those stats. People may not be reading Jane Austen cover to cover in GBS (maybe they are, maybe they are not), but isn’t the possibility that a book that rarely would have come onto the radar screen at all has such an amazing chance to be found by someone and used for something, isn’t that a good thing?

Surely Alice does not mean that books should be enjoyed a certain way or not at all. Maybe she worries that the numbers of people who read cover to cover will diminish. Or that people will “cite” a book for something that a more thorough reading might not support. But I don’t think that’s how it’s going to work. Exposing books to search brings them to the attention of a much bigger audience then they could ever have on our shelves. Among the many people who will discover a book on GBS, a percentage, let’s say a small percentage, will not just look at 10 pages. A small percentage will download the whole book and read it, or substantially all of it, cover to cover. These are people who never would have known the book existed except for having found it in a search for something else on Google. We will add these readers to the ones who come to the book from other, more traditional, perhaps scholarly, places. Scholars must stay within ethical bounds when they cite authority for other reasons besides the inability to find material with a narrow search. So, if a much larger percentage of those GBS readers who discover the book will not read it cover to cover or cite it at all, so what?

Neither the book’s author nor the librarian who collected and protected it for decades can know what use someone not of our time, or our culture, or our values might have for a book that the author wrote to be read cover to cover. But we can take pleasure in the idea that people will use books in ways we never imagined. Isn’t anything better than being parked and forgotten by most everyone at the dead end?

Environmentalism has managed to win the battle for clarity—to make its points clearly enough that they ceased to be dismissed as “arcane” or technical, to overcome neglect by the media, to articulate a set of concerns that are those of any educated citizen. The other striking phenomenon of the last ten years is the migration of intellectual property issues off the law reviews or business pages and onto the front pages and the editorial pages. Blogs have been particularly influential. Widely read sites such as Slashdot and Boing-Boing have multiple postings on intellectual property issues each day; some are rants, but others are at a level of sophistication that once would have been confined to academic discussion.18

Scientists passionately debate the importance of open access to scholarly journals. Geographers and climatologists fume over access to geospatial data. The movement has been pronounced enough to generate its own reaction. The popular comics site “xkcd” has strips critical of the Digital Millennium Copyright Act,19 but also a nerdily idyllic picture of a stick figure reclining under a tree and saying, “Sometimes I just can’t get outraged over copyright law.”20 That cartoon now resides on my computer desktop. (It is under a Creative Commons license, ironically enough.)

His last book, more than 10 years ago, Software, Shamans and Spleens, and this book are sharply contrasting on this very point. Shamans is striking in its density and difficulty. I can honestly say that I have not read another book about copyright during my entire career as an attorney that was harder to understand than Software, Shamans and Spleens. It almost seemed deliberately difficult.

This book is striking in its appeal to common sensibilities and understanding, relying on common language rather than legalese or academic vocabulary that excludes the majority of potential readers. The book is anything but a yawn. I had read many of its arguments in earlier works by Boyle and others, but I still found it fascinating to see how he brought these arguments alive, gave them force and the power to ignite. The book moves effortlessly from one piece of his argument to the next, building patiently, referring to earlier points frequently enough to make them an integral part of later chapters.

In another post I wrote as I started to read the book, I indicated that I had given up on the idea that the problems with copyright could be addressed by our legislators, that the force of competition with the mass of free was more likely to move intellectual property practice (if not policy) than legal change, but that I hoped that Boyle could, well, here’s what I said:

Well, I have to say, I love this book. It is really readable, brings together many of his past writings with other authors I’ve read (many thanks to Phil), but focuses on the dire implications of our current trajectory. He is determined that the law has to change. As I’ve said many times, I’ve given up on that. I want to hope, but the underlying process seems so irretrievably lost to money, or so I believe. *** So where does [his] hope come from?

I’m going to keep reading. Maybe he explains his hope as well as he explains history, economics and philosophy.

And indeed, he does! You know, he could be just as discouraged as I am about the prospect for Congressional action, but he is convinced that the costs of inaction are far too high to give up. After reading this book, I can see pretty clearly that I tend to see things too simplistically:

Law is an impediment? Route around it.

Monopoly actually impedes progress and creativity? Competition will win out.

This stuff is way complicated. But, as I’ve tried to make clear, he makes it accessible without oversimplifying it. Most importantly, he makes a very compelling case for not giving up while we route around the law as best we can (for example, Creative Commons), while we wait for competition to prevail (for example, that openness turns profits too). He also makes a compelling case that it is possible to make a compelling case, and that we are on the way there, and that there are particular tools we can use to enhance the communication of the case to the public. The book actually has changed my mind about the futility of it all!

And small wonder. He has been working on these ideas and writing about them and studying them for 15 years (at least) and weaves together a vast quantity of knowledge, insight, perspective and conviction. A genius. And a great keynote speaker!

Ah, but then I think about Disney and the next go at term extension. 2017. Eight years from now. That’s a short time to pull it all together, isn’t it? But it’s possible…

I really like how nicely this ap demonstrates the value of a freely available and accessible digital public domain. All of the materials apture pulls together are in the public domain, so the barriers to its entry into this market are a lot lower than they would be if apture had to seek out and negotiate licenses to use every little shred of information about our representatives. Very good example of the idea that free can be the basis of a lot of value.

Google sponsors meetings of all of the library partners, and at our meeting in July in Ann Arbor, U Mich talked about its effort to augment Google’s public domain (pd) determinations with additional research of its own to move the U.S. pd date line from 1923 to whatever date really applied for individual works, based on either their renewal or non-renewal (for works published between 1923 and 1964), or their government works status (no protection at all). We here at UT were very excited about this effort (which I have greatly simplified here). In my role at UT’s Libraries, I had been looking for projects that might blend my existing copyright expertise with my evolving interests in the future of libraries in a networked world, and this seemed to fit the bill. Se we jumped in with both feet. We were lucky enough to get Maria to help us, with her extensive knowledge of the Benson and the ability to design a data collection database for us. We are about to test some of Michigan’s pd determinations for them, to confirm their process, or help them to tweak it if need be. So, we are just about ready to start our own data collection, to begin making pd determinations for our many foreign works, and right away we hit a big, big snag.

U.S. copyright law is complicated enough. I’ve always been horrified at how complicated it is. Check out the link in our sidebar called “Flow chart.” It shows in flow chart form how to make pd determinations for U.S. works. But that is nothing compared to the charts Maria began producing for us that showed the flow for pd determinations in some of our foreign jurisdictions. Geez. As I began to see these, I immediately started looking for a way out of what seemed like a totally NOT SCALABLE process. Of course, there is a way out, because we are in the U.S. Our law gives a set term of protection to foreign works that were not published here (many of which works, until 1996 GATT, were pd in this country for failure to comply with our requirements to use copyright notices and register renewals, etc.) — it’s 95 years from the date of publication. We had originally thought that we should establish pd status for the work in its country of origin, in addition to establishing the status for the work here in the U.S. But as I began to see how complication had been raised to an art form in some of these foreign jurisdictions, I began to realize that we probably could not offer anything of use for those countries, but discouragement. It’s not just that their statutes are, like ours, seemingly designed to obscure public domain status. Rather, it’s the proliferation of presidential proclamations, bilateral and multi-lateral treaty declarations, and difficulty in determining the relationship of such add-ons to the statutes themselves, that made the job of saying what the pd status of a work in its country of origin might be, just too impossible. One has to practically be an expert on U.S. copyright law to opine about pd status in this country. It’s just not practical for someone who doesn’t even speak the language to try to interpret foreign laws and come up with a pd determination. So, this is a big gap that we are not likely going to be able to effectively fill for our foreign works.

That’s not to say that we won’t contribute what we learn about our works to the public for its use. It’s just that we won’t likely be able to come to a determination in many, if not most, cases.

Next time I’ll talk about the “rule of the shorter term,” a Berne Convention mechanism that, for most Berne countries, allows use of the shorter term to determine pd status when two or more jurisdictions are involved in a use.

Orphan works are those books, records, images, compositions, manuscripts, movies, screenplays, paintings and drawings — in short, any work protected by copyright — whose owner cannot be determined, located, or who does not respond when contacted. We have always had orphan works, but a number of factors have converged to turn their existence into a significant lost opportunity. In the past, who really cared? Orphan status may have been unfortunate, but for the most part, it was just what happened over time. The need to exercise the rights of the copyright owner, that is, to make copies, create derivative works, display, perform or distribute an older work publicly, beyond the rights authorized in the Copyright Act, typically did not arise. Not so today. Now, because of the drive to digitize library, archive and museum holdings, and offer access to them to as broad an audience as we can, the orphans will suffer a fate equal to death — the obscurity resulting from their inability to be “permissioned,” digitized and displayed.

As has been widely documented and reported, the vast majority of books on our shelves are still protected by copyright, but their copyright owners are unreachable. The cost of misidentifying an orphan is extremely high: a copyright owner who registered her copyright can ask a court to award up to $30,000 per innocent infringement. These extreme penalties are meant to deter infringement, but in this case, they deter activity that no one will object to in most, if not all, cases. Nevertheless, a small chance of being wrong, but a high penalty if one is wrong, makes for a risky situation. So what’s going to happen to all those orphans? The promise of renewal on the Internet dangles temptingly for them, but only very brave librarians will take this risk and digitize and display them.

And, I believe, that’s just what we have, cautiously brave librarians.

The photographers’ successful campaign to destroy the chance for effective Congressional legislation regarding orphan works, to which I referred in earlier sections, draws the line in the sand. Either those who care whether a staggeringly large part of our cultural record ever makes it off the shelves, out of the boxes and onto the Internet, are willing to step over or they are not. Enormous numbers of works give no signs of who the author is, who the publisher was or when the work was produced or distributed. If a work is published without proper notice (name of publisher and date) during certain time frames (1923 – 1989), it becomes a part of the public domain. But if it is not published, or if it is published after 1989 without an indication of who its author is, its protection is automatic and lasts for the life of the author plus 70 years in the U.S. (and longer in some countries). If you can’t determine the author, you can never know when such works enter the public domain. The obscurity we consign these works to is not a temporary condition. It is forever. The cost of doing nothing has become unacceptably high.

Without legislation reducing the enormous penalties for being wrong, there is considerable pressure to get the “reasonable search” for an owner right, so that the reasonable search becomes our insurance against catastrophe. This calls for collaboration. Librarians are beginning to build an evidence base, at first dedicated to freeing the books that are in the public domain, but not currently properly identified as such. But next in line are the orphans. The routine we engage to determine whether a work is properly copyrighted (notice) and whether the copyright was renewed as required merges imperceptibly into an inquiry into when an author died, where are his heirs, whether a publisher is out of business, where the last place of business was, and on down the line. Participants in this project will document sources of law and the factual information about each book, author and publisher, document results and publicly display the process and the findings so that others may build upon what has been learned. In the U.S., evidence about a particular book’s publisher’s disappearance identifies not just one orphan book but every book that publisher owned. When copyrights are owned by individual authors, evidence that an author left no estate or heirs identifies as orphaned every book she ever wrote. So it is important to publicly conserve this evidence and rebuild not only our public domain, but identify our orphan works. Slowly but surely, librarians will put together the evidence we need to feel confident that, even facing draconian penalties, we can reduce the risks to manageable levels.

There is additional evidence that other risk-averse institutions are also beginning to wade into these waters. Brewster Kahle, long committed to bringing public domain works to a world audience, was reported in hangingtogether.org (OCLC) to have encouraged participants at Open Content Alliance’s (OCA) annual meeting (2007) to take the next step with a pilot-project that will “start digitizing out-of-print/in copyright works, a departure from the strictly public domain digitization in the OCA to date.”

Brewster could be standing shoulder-to-shoulder with Google in relying on fair use for the digitization step, but if he plans to offer these works to a public audience, he would be going much further, perhaps claiming these works as orphans. It’s not clear from the hangingtogether.org meeting notes, but if Brewster is venturing into making orphan works available, he would be grappling with the same issue described above — establishing the contours of the reasonable search that establishes the fact of orphan status. Perhaps the project seeks permission, and in the failed attempt, determines that a work is an orphan. This will be a project to watch.

Here again, however, the sad consequence of Congressional paralysis is looming copyright irrelevance. The pronouncement by then Patent Commissioner, Bruce Lehman, that, “[w]ith no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights — and limitations on those rights — to promote the progress of science and the useful arts,” turned out to be dead wrong (introduction to the 1995 NIITF White Paper). In marked contrast, he confidently dismissed opponents’ concerns that turned out to be deadly accurate, among others, that fighting technology would result in massive disrespect for the law. And its ultimate irrelevance. Isn’t this too high a price to pay?