The Fate of Fair Use

This week I’m revising a history of UCC Article 2B and UCITA. This has caused me to recall that just a decade ago, the great fear was that UCITA and digital rights management (DRM) would greatly enhance the power of publishers in the digital environment, and that fair use would cease to be an effective defense (or right, depending on one’s perspective) under U.S. copyright law. Because that legislation and copy protection technology promised to safeguard copyright owners’ property rights in literary works, the economic value of literary works in the digital environment seemed secure.

A decade later: UCITA was enacted in only 2 states (Maryland and Virginia); DRM is widely applied to literary works, but non-DRM copies of literary works proliferate; the U.S. Register of Copyrights has announced that, in her view, unauthorized digitization of entire copyrighted literary works, for the purpose of selling advertising against the digitized copies or portions of them, qualifies as fair use; accordingly, since the Register’s view amounts to a rejection of significant aspects of the property rights policies underlying the 1976 Copyright Act with respect to literary works, the economic value of literary works seems seriously threatened; and the strength of publishers appears substantially diminished. Today, fair use seems about to swallow up copyright owners’ exclusive rights in literary works. A startling turnaround in the course of ten years.

I predict that litigants will persuade federal courts to take Register Peters’s view of fair use and, slowly and steadily over time, extend it further and further, so that copyright protection for literary works becomes meaningless. And digitizers stand to profit not only from overt use of unauthorized copies, but as Joseph Esposito rightly points out, also from secret uses, such as data mining, that cannot be detected by copyright owners. The declining economic value of copyrighted literary works likely reflects the loss of revenue caused by both overt and covert uses of unauthorized digital copies.

As a result, say the wise publishing industry veterans of whose views I’m aware, we are preparing for a new publishing environment, in which authors and publishers attempt to generate revenue streams based, not on their property rights in the information they create or distribute (since those rights will have been effectively extinguished), but on services they provide in conjunction with that information. So mainstream publishing declines into a non-credentialed services industry, with enormous numbers of providers, engaged in fierce and unrelenting competition, with a predictable impact on the author’s ability to recoup his or her upfront cost of creating a literary work.

Judge Posner & Professor Landes long ago predicted what kinds of literary works were likely to dominate the market in the (effective) absence of copyright: “There would be increased incentives to create faddish, ephemeral, and otherwise transitory works because the gains from being first in the market for such works would be likely to exceed the losses from absence of copyright protection.” William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. Leg. Stud. 325, 332 (1989). That prediction was made in a predominantly print world; I’m very interested to see how it stands up in the digital environment.

Why Unauthorized Full Text Digitization Should Not Be Deemed Fair Use

Recent, insightful comments by consultant Joseph Esposito (scroll down) respecting the text mining of digitized works prompted me to write the following. The statements below are mine alone.

Secret text-mining of digitized works, and the for-profit use of the results of such text-mining, furnish, I think, two key reasons that U.S. Register of Copyright Marybeth Peters’s pronouncements about fair use respecting unauthorized full text digitization are so important to copyright owners and licensees. Once the door is opened to designating as fair use the unauthorized full-text digitization of copyrighted works, the digitizers can reap a windfall: they can analyze those digitized texts, and profit from the results of that analysis with impunity. The reason: most text mining processes occur offline and cannot be detected in the ordinary course. To my knowlege, copyright owners and licensees have no effective means of monitoring digitizers to protect against unauthorized automated analysis of scanned texts.

This outcome seems inconsistent with the property rights policies underlying the 1976 Copyright Act, policies negotiated over the course of more than six decades. See, e.g., this discussion in the House Report. I think this is one reason that some people are calling for congressional action respecting these issues. If judges or the Copyright Office decide these matters, there is a substantial risk that unelected officials will cause the law will take a course inconsistent with Congress’s intent as expressed in the 1976 Act.

It is possible that the views of a majority of U.S. citizens respecting property rights in information have changed since enactment of the 1976 Act. (I do not know whether this is true, or, if it be true, the extent of the change.) If such a change has occurred, and if a majority of U.S. citizens want to change U.S. copyright law to reflect their new view of property rights in information (whatever it may be), then I think it is Congress’s prerogative to express that new view in legislation, and I think it’s also Congress’s responsibility to protect the very substantial reliance interests of copyright owners and their licensees who have acted based on the 1976 Act.

But given that it took more than half a century to work out the compromises that yielded the 1976 Act, I think it’s unlikely that Congress will act timely on these issues, and so the decision probably will be left to the courts and the Copyright Office. (I hope I’m proven wrong.) And the market accordingly will discount the value of copyrights protected by U.S. law. Indeed, I suspect such discounting began at least as early as the moment that Register Peters’s views on this fair use matter became public. Market participants, at least, understand the stakes.

Peer Review for Bloggingheads

Like many other fans of Bloggingheads.tv (BHTV), I was saddened last week to learn that Dr. Sean Carroll and Carl Zimmer had announced that they had chosen to end their participation in BHTV programs, which in the context of BHTV are called “diavlogs.” Dr. Carroll provides his account here, and Mr. Zimmer here. The matter is further discussed in this BHTV diavlog between BHTV founder Robert Wright and science journalist George Johnson.

The reasons for Dr. Carroll’s and Mr. Zimmer’s departures appear to be:

• (1) that topics considered by peer-reviewed science to belong in the realm of pseudo-science, or persons advocating views considered by peer-reviewed science to be pseudo-scientific, have twice recently been the focus of BHTV diavlogs, with one of these diavlogs having been published in the “Science Saturday” slot usually reserved for discussion of topics recognized as authentic science in peer-reviewed scholarly literature;
• (2) that the BHTV management has declined to establish an editorial policy to prevent pseudo-scientific topics, or advocates of pseudo-science, from being highlighted in future BHTV diavlogs; and
• (3) that Dr. Carroll and Mr. Zimmer considered that their reputations had been compromised by their association with a media venue that highlighted pseudo-scientific topics or advocates of pseudo-science.

I regret Dr. Carroll’s and Mr. Zimmer’s decisions, because I have found their BHTV diavlogs extremely informative, and because I believe that their diavlogs have provided a very high quality of science education to a very large audience. I completely understand their concerns, however, and I respect their decisions to withdraw from BHTV. I also respect and understand the position of BHTV management, that they wish for BHTV to remain a generally open forum for public discussion and debate of a very wide range of topics.

Here is a proposal to change the Bloggingheads.tv editorial process, that hopefully will enable Dr. Carroll and Mr. Zimmer to resume participation in BHTV diavlogs, while ensuring that BHTV will remain open to discussion and debate of a wide range of topics:

• Respecting the BHTV “Science Saturday” forum only, the BHTV management will name a peer review board composed of 3 scientists who regularly appear in BHTV diavlogs and whose work is regularly published in peer-reviewed scholarly journals (the “Science Saturday Peer Review Board,” or “SSPRB”). Each SSPRB member will serve a twelve month term. Any SSPRB member may serve consecutive terms. The inaugural SSPRB and the BHTV management will establish formal, written procedures for selecting future SSPRB members, both to replace existing members at the end of each member’s twelve-month term, and to replace an existing member who must leave before the end of his or her twelve-month term (the “SSPRB Membership Procedures”);
• The BHTV management and the SSPRB will establish formal, written procedures for vetting proposals for future BHTV Science Saturday diavlogs (the “SSPRB Peer Review Procedures”). The SSPRB Peer Review Procedures will take effect once they have been approved by the SSPRB and BHTV management;
• As of the date the SSPRB Peer Review Procedures take effect, no recording of any Science Saturday diavlog may occur without the topic and participants of that diavlog having been approved in advance by the SSPRB consistent with the SSPRB Peer Review Procedures;
• Once every six months following the date the SSPRB Peer Review Procedures take effect, BHTV management will meet with the SSPRB to assess the effectiveness of the SSPRB Peer Review Procedures. Once every twelve months following the date the inaugural SSPRB is convened, the SSPRB will submit a formal, written report to BHTV management describing and evaluating the operations of the SSPRB during the preceding twelve months;
• Nothing in this proposal would affect any aspect of BHTV programming other than Science Saturday programming.

The intent of this proposal is to institute a formal peer review process for BHTV Science Saturday programming, while leaving the rest of BHTV programming open to any topic and any speaker, as is presently the case. Comments are welcome.

Reasonable Conservatism

[NOTE: Updated on 8-9-09 to add links to several additional conservative commentators.]

In two recent posts, David Frum at New Majority persuasively advocates, and also demonstrates, the use of a civil, rational style of political rhetoric by conservatives. He is one of many conservative commentators (including Mr. Frum’s colleagues at the American Enterprise Institute; commentators including, on foreign affairs, Robert Kagan, Frederick W. Kagan, and Eli Lake, and on domestic matters Gary Becker & Richard Posner, David Brooks, George F. Will, William Kristol, Michael Goldfarb, L. Gordon Crovitz, Gerald F. Seib, Ross Douthat, and Reihan Salam; as well as many scholars and analysts at the Heritage Foundation and the Cato Institute) currently offering sound policy analysis and proposals presented by means of a moderate and reasonable mode of argumentation.

• Respecting healthcare reform, in Reforms Conservatives Can Favor, Mr. Frum offers 8 reasonable principles to ground conservative healthcare reform proposals. These principles show that, like most other Americans, Mr. Frum understands that the current U.S. healthcare system features perverse incentives that encourage overutilization, and that the system should therefore be changed. While I do not necessarily agree with all of Mr. Frum’s principles, I respect and applaud the reasoned and civil manner in which he offers them.
• Respecting political strategy and tactics more generally, in Quit Whining, Mr. Frum proffers reasoned arguments why conservatives should relinquish extreme or demagogic political rhetoric. He makes a persuasive case that, because most U.S. voters want competent and reasonable leadership, conservatives should therefore offer voters sound policy proposals supported by well-reasoned arguments, and should represent themselves as rational, moderate, temperate, and competent leaders.

Mr. Frum’s eloquent writing — like the sound political speech of many of his colleagues — shows that the often extreme or irrational manner of political argumentation favored by some prominent conservatives is by no means representative of the conservative movement as a whole. Mr. Frum deserves the support of conservatives, and, indeed, of all Americans, who favor our traditional system of deliberative politics, which only functions properly when the electorate is informed by means of reasoned and civil debate.

On Google Books Intermediaries & Pricing

Respecting intermediaries and pricing for the for-fee, full-text version of Google Books that may emerge from the proposed Google Books Settlement: If the current version of the settlement agreement is approved by the court and becomes effective, then components of Google Books (GBS) will be unique goods in the market for a certain period of time, and that gives the rights owners/Book Rights Registry (BRR) a strong incentive to price above marginal cost respecting those components, during that time. Accordingly, I bet that many public libraries and some academic libraries will be unable to afford the paid full-text GBS subscription.

But I would think that the rights owners/BRR would also wish to negotiate deals with the Internet service providers, and cable, satellite, and mobile phone/device providers, so that access to the full text of GBS could be purchased as part of ISP/cable/sat/mobile offerings. Paid access through ISP/cable/sat/mobile providers should enable remote/mobile access to full text of GBS for public library or academic library users who are willing and able to pay for such access, and whose libraries don’t subscribe to paid GBS. Libraries will continue to furnish access to print versions for those whose library can’t afford paid GBS, and who can’t afford paid GBS via their ISP/cable/sat/mobile provider, or who prefer print for other reasons (higher resolution, access to pictures, etc.).

These developments don’t seem unexpected: they seem consistent with the general trend toward disintermediation of the library, and of all information intermediaries, during the transition to a primarily digital information environment (as Joseph Esposito (scroll down) and Mike Shatzkin continually and, in my view, correctly remind us).

New Scholarly Monograph Ebook Project

NYU Press announced on June 26, 2009 that the Mellon Foundation is funding a new collaboration between several university presses to build a scholarly ebook platform. The participants are the university presses of NYU, the University of Pennsylvania, Temple University, and Rutgers University. The platform will furnish access to new titles and backlists, and may include print or print on demand capabilities.

I’m delighted at this sign of the continued vitality of the scholarly monograph, refuting my earlier baleful post.

Okamoto on Teaching Transactional Lawyering

[Updated June 9-12, 2009 to links to The Conglomerate's posts (here, here, here, and here) about the AALS Mid-Year Conference on Business Associations.]

Professor Karl Okamoto of Drexel University School of Law has published a very interesting new article, Teaching Transactional Lawyering. Here is the abstract:

“Law schools are giving more and more attention to transactional lawyering. Once relegated to a single course on ‘business planning,’ law school curriculums at every level of law school are being pushed to include a new focus on teaching future practitioners how to do deals. In doing so, law schools are discovering that the skills required to be a proficient transactional lawyer are often different from those needed by litigators or judges. Therefore the curriculum that teaches students how to ‘think like a lawyer’ falls short when the goal becomes to teach them to ‘think like a deal lawyer.’ This article describes a novel transactional lawyering course designed to serve as the ‘keystone’ course in a transactional lawyering curriculum.”

This paper describes a very innovative approach to skills-based instruction respecting business law. Highly recommended.

The Conglomerate blog is reporting on the AALS Mid-Year Conference on Business Associations, which includes a workshop on transactional law. See Prof. Gordon Smith’s posts here and here, and Prof. Usha Rodrigues’s posts here, here, here, here, and here.

The Meaning of “True Conservative”: Update

[NOTE: Updated on 6-16-2009 to link to Reihan Salam's and Matt Lewis's June 15, 2009 debate about conservatism and the Republican Party on Lew Dobbs Tonight. Updated on 6-12-2009 to link to Matt Lewis's latest comments on this topic on BloggingheadsTV. Updated on 6-11-2009 to link to David Frum's latest BloggingheadsTV comment on this topic, and Matt Lewis's response. Updated on 6-9-08 to link to Crystal Wright's post on this matter and to refer to Matt Lewis's blog, and on 6-7-2009 to link to David Frum's post on this matter.]

In an earlier post I asked Matt Lewis, a conservative commentator on Bloggingheads.tv, to state his definition of “true conservative,” a term he frequently uses on his weekly program.  Many thanks to Mr. Lewis for offering his definition of “true conservative” on the June 5, 2009 episode of “The Week in Blog.” Mr. Lewis actually appears to have offered three definitions:

(1) He defines “conservative” as “[t]he sort of traditional, what Ronald Reagan might have thought of as someone who, by and large, is for smaller government, strong national defense, lower taxes.”

(2) Mr. Lewis states that “Russell Kirk actually laid out what is a conservative . . . there are several bullet points.”  Mr. Lewis then refers us to a section of the Wikipedia article on Dr. Kirk, which contains what appears to be a summary of Dr. Kirk’s views on conservatism, as expressed in Professor Gerald Russello’s article, Russell Kirk and Territorial Democracy, 34 PUBLIUS: J. FEDERALISM 109 (2004):

“ [a]. A belief in a transcendent order, which Kirk described variously as based in tradition, divine revelation, or natural law;

“[b]. An affection for the ‘variety and mystery’ of human existence;

“[c]. A conviction that society requires orders and classes that emphasize ‘natural’ distinctions;

“[d]. A belief that property and freedom are closely linked;

“[e]. A faith in custom, convention, and prescription, and

“[f]. A recognition that innovation must be tied to existing traditions and customs, which entails a respect for the political value of prudence.”

(3) Mr. Lewis defines “conservative” as: “It’s like pornography, you know it when you see it.”

Definitions (1) and (2) give us clear criteria to work with.  (We’ll disregard definition (3), since it contains no objective criteria.)

In previous episodes of “The Week in Blog,” Mr. Lewis has stated that Ross Douthat, David Frum, and Reihan Salam are not “true conservatives.”  Now that we know what Mr. Lewis means by “true conservative,” I would be most interested to hear from Mr. Lewis, and from others, respecting the ways in which they believe that Mr. Douthat, Mr. Frum, and Mr. Salam fail to satisfy definitions (1) and (2).  In my view, Mr. Douthat, Mr. Frum, and Mr. Salam do satisfy those definitions, and so I find myself puzzled by Mr. Lewis’s characterization of their politics.

One way to approach this discussion is to consider the criteria in definitions (1) and (2) as conservative “principles,” shared by all conservatives, while individual conservatives of good will may differ on particular “policies” or “issues.”

David Frum has just commented on this topic on BloggingheadsTV, and has posted a comment on this matter, as has Crystal Wright, both on the New Majority blog.

Reihan Salam & Matt Lewis discussed this topic, and the future of the Republican Party, on CNN’s Lew Dobbs Tonight program on June 15, 2009.

Matt Lewis declined to respond directly to this post, but on June 12, 2009, he discussed this topic again on BloggingheadsTV, and on June 10, 2009, he wrote a new post on this topic. He also referred us generally to his blog at Town Hall, and particularly to this October 7, 2008 post.

Feel free to respond in the comments section of this post, or in the comments section at Bloggingheads.

A Possible Legal Basis for Rights Arising from Text-to-Speech

Recent reports that e-book-reader vendors have disabled text-to-speech (TTS) audio functions in their reading devices (thanks to Joseph Esposito for that link), evidently in order to avoid breach of copyright, have led some observers to consider the possible statutory grounds for such copyright claims. Recent comments by Jane Litte prompted the following thoughts:

I wonder whether a statutory argument (albeit a weak one) respecting [copyright rights arising from TTS under] U.S. law could be made along the following lines: that TTS renders a literary work [accessible via an e-book reader] also a [17 U.S.C.] sec. 101 “sound recording,” so that the resulting digital copies are also sec. 101 “phonorecords.” This argument would rest on the generous wording of those sec. 101 definitions, e.g., respecting “phonorecords”: “material objects in which sounds . . . are fixed by any method now known or later developed, and from which the sounds can be . . . otherwise communicated, either directly or with the aid of a machine or device”; and respecting “sound recordings”: “regardless of the nature of the material objects . . . in which they are embodied.”

On this account, the owner of a copyright in a work distributed digitally to [e-book reader] devices with TTS audio capability could then argue that the digital reproductions were both “copies” of the work considered as a literary work and “phonorecords” of the work considered as a “sound recording,” and that respecting such “phonorecords” the copyright owner was entitled to assert sec. 106(1) reproduction rights and sec. 106(3) distribution rights.

Again, I don’t consider this a strong argument, but it is based on the statutory language.

The Meaning of “True Conservative”

[NOTE: Updated on 6-5-2009 to link to an updated post on this topic. Updated on 5-25-2009 to provide direct links to the Becker-Posner posts.]

Matt Lewis, who represents a conservative perspective on the weekly “The Week in Blog” program on Bloggingheadstv, has recently taken to using the term “true conservative,” without, however, defining that term. Like many conservative viewers of Mr. Lewis’s program, I am intrigued to know how Mr. Lewis defines “true conservative,” and which individuals he believes satisfy that definition. On May 24 Mr. Lewis wrote me to say that he plans to discuss his definition of “true conservative” on the next “Week in Blog” program, which I believe will appear during the week of May 25. I encourage conservatives to watch this program and join in this discussion. Mr. Lewis’s program comes amid much spirited discussion and debate about the conservative movement. Notable recent contributions of possible interest to readers of this blog include those of Dr. Gary Becker, here and here & Senior Circuit Judge Richard Posner, here and here.

[On June 5, 2009, Matt Lewis kindly responded to my question; his response is discussed here.]