In between stints of exam-writing this weekend, I played through Portal 2. I was prepared for the brilliant writing. Some of the best lines, like the one about Aristotle, really only work in context, but others work on their own, such as “We’ve both said a lot of things you’re going to regret.” I was also prepared for the clever puzzles, which introduced multiple new gameplay elements and took good advantage of them. But I wasn’t prepared for the emotional resonance. Since it’s pretty much impossible to discuss these themes without massive spoilers, I’m just going to put them inside the extended entry. If you haven’t played through the game, you should probably stop here; what follows will barely even make sense.
Berkeley’s Pam Samuelson continues to demonstrate why she is the most significant copyright scholar thinking about the Google Books settlement. Her two previous extended articles, Google Book Search and the Future of Books in Cyberspace and The Google Book Settlement as Copyright Reform were both must-reads that put the settlement in the larger context of modern digital copyright law. She has just rounded out the trilogy with a draft of Legislative Alternatives to the Google Book Settlement (SSRN version, which plots out a possible way forward.
People have bandied about the idea that the settlement tried to create a form of extended collective licensing via the unusual route of a class-action settlement. Samuelson gives this idea a rigorous examination, noting some of its advantages and its pitfalls. In an especially illuminating passage, she compares the settlement programs and the kind of collective licensing in place in the Nordic countries to some of the closest comparable things in the the United States: the Copyright Clearance Center and JSTOR. She doesn’t fully extended collective licensing (indeed, she notes a number of significant concerns about its implementation), but instead recommends that the Copyright Office be asked to study the possibility.
Samuelson then proceeds to tick off a list of elements that she thinks belong in a balanced legislative package dealing with the issue Google Books raises:
- An expansion of the section 108 privileges for preservation, subject to appropriate safeguards such as security procedures. Digitization is an obvious and important component of preservation strategies; a well-crafted preservation privilege could help institutions like the HathiTrust use Google-scanned books to pass on our literary heritage. In a later section, Samuelson also argues for an expansion of library privileges in general. The Section 108 Study Group previously took a cut at this problem, but none of its (fairly modest) proposals have yet been acted on.
- A privilege to display snippets (subject to an opt-out) and to make what the settlement called “nonconsumptive uses” but Samuelson more accurately renames “nonexpressive uses.” (I would argue that both of these are or should be fair use already, but explicit recognition would provide a firmer legal footing.)
- “Congress should consider requiring Google to grant a license to other search engines to make nonexpressive uses of works in the GBS corpus.” Here, I wonder. I disagreed with the portions of Judge Chin’s opinion that could be read to suggest that Google’s initial behavior was necessarily reprehensible; Google engaged in activities that it reasonably thought were legal under copyright law. (I and others thought so, too.) Google’s competitors were not as tolerant of legal risks. This strikes me as a classic example of Learned Hand’s famous line from United States v. Alcoa, “The successful competitor, having been urged to compete, must not be turned upon when he wins.” In this case, if others would like to search the collected corpus of books, it seems reasonable to ask them to make their own scans. The real fix here is to reform copyright law so that scanning for purposes of indexing is unambiguously legal — which is captured in Samuelson’s point about snippet display.
- Her proposal for what to do about orphan works is a clever compromise between the settlement and a full open-access regime:
Yet, Congress might consider adapting the GBS approach to orphan works to achieve a similar but better outcome. Congress could authorize the creation of an ECL for out-of-print books, as noted above; unclaimed funds from these books could be escrowed for a period of years; and after efforts to locate owners during those years failed, the works should be designated orphans and made available on an open access basis. If a book rights holder later came forward, he or she should be able to change the open access designation for such works.
- The mess over who owns electronic rights under decades of accumulated author-publisher contracts, in Samuelson’s view, is severe enough that it may justify Congressional action, perhaps along the lines of the settlement.
- The settlement’s programs for print-disabled readers were groundbreaking; similar provisions in copyright law in general would be a real breakthrough in meaningful access for a group that could most benefit from it.
- Privacy protections for readers are serious enough that they should be legislated.
- Finally, good-faith determinations that a work is in the public domain or was not commercially available should act as a shield from liability, provided that the entity stops treating it as such once the mistake is pointed out to it.
All in all, this is a very important paper. It deserves to be read alongside the discussions of a possible Digital Public Library of America; it gives serious attention the legal details on which any such project would depend. One may not agree with everything in it, but if you are interested in copyright policy post-rejection, it would be a serious mistake not to read this article closely.
Wallace revels in the supposed inner workings of this secret world, relishing the mouthfeel of accounting insanity like “for ruling requests concerning the classification of an organization as a limited partnership where a corporation is the sole general partner, see Rev. Proc. 72-13, 1972-1 CB 735.”
Supposed? Secret? Insanity? I checked, and Revenue Procedure 72-13 is real. It can be found in volume 1972-1 of the IRS’s Cumulative Bulletin, on page 735. And its subject heading is “Conditions under which the Revenue Service will issue a ruling concerning classification of an organization as a limited partnership where a corporation is the sole general partner.” David Foster Wallace took his research, and his subjects, seriously.
I’m shocked that it’s taken me this long to make the connection, but I realized today that two of my recent interests are related. First, there’s Zediva, the streaming-video website whose theory is that what it’s doing is legal because each stream comes from a legally purchased DVD that only one person can view at a time. And second, there’s this, from 2003:
… a Web site that would let customers stream movies from legally purchased DVDs, something that was not clearly illegal because only one customer at a time could view each stream …
That website never got off the ground. The idea was to host it from Sealand. But, as I summarize the story in my Sealand paper:
A Sealand advisor told the royal family that it risked bad publicity, and they balked at the deal. The fear was that United States would put pressure on England to put pressure on Sealand if it turned into a streaming-movie source.
Granted, the legal landscape has changed since 2003, and Sealand is so one-of-a-kind that any comparison to it is always a little misleading. But still, Zediva is trying a business model that Sealand was afraid to touch. Sealand!
Live comment preview is working again. At least, it should be. Let me know if anything is amiss.
Thereby hangs a tale. I had been using John Fraser’s excellent WMD Editor, which he made available as a hosted service from wmd-editor.com. He also released a downloadable version, that one could install for oneself, but since the hosted service was so convenient, I never got around it. Bad idea.
It seems that within a few months of releasing WMD Editor to the world, Fraser disappeared completely from the Internet. (I hope he’s okay, but I fear the worst.) A few months ago, the wmd-editor.com domain fell over, and poof, there went my live comment preview. I dug around a bit online, and discovered that I wasn’t the only one with this problem. The good people at Stack Overflow did yeomen service in reverse engineering how it worked. I took a relatively recent version of the code from the wmd-new project, installed the relevant files on my server, and tinkered until I had things working again.
There’s a lesson here. In Arthur Weasley’s words, “Never trust anything that can think for itself if you can’t see where it keeps its brain.”
William McGeveran: Judge Chin has taken more than a year to write this decision; were there any surprises in it?
James Grimmelmann: At first, its length and tone. I’d been expecting a treatise on copyright, antitrust, and civil procedure. My students and I identified 76 different issues raised by objectors. When it took Judge Chin over a year to issue the opinion, I assumed it was because he was drafting a doorstop.
But no. It’s 48 pages, and that’s in double-spaced Courier, which makes it, what, 10 normal pages? He writes only briefly on most of the major issues. He cites very few cases; this is not an exhaustive analysis of each and every thrust and parry. He’s also unafraid to leave issues unresolved. He takes a strong position that he doesn’t have the power to approve forward-looking settlements like this, but when it comes to the meaty copyright, antitrust, and privacy issues—on which so much ink has been spilled—he doesn’t give definitive answers.
That makes it sound like a weak, waffling opinion. But the more I think about it, the savvier I think it is. He didn’t destroy the settlement; he just quietly deflated it. He resolved a one-of-a-kind case in a way that doesn’t warp the legal system for anyone else, he gave the parties a reasonable way forward with a much less ambitious settlement, and he let the many people who’ve been paying close attention know that their voices have been heard.
In reading Yochai Benkler’s spectacular Wikileaks paper, I was struck by how many of the twists and turns in the Wikileaks drama have been driven by tensions between organizations and individuals. The story of Wikileaks is the story of the faceless collective, which is built by the collaborative and selfless work of its members, but is also always at risk that they will reassert their individuality and bring everything crashing down. The field on which those tensions are played out is the control over information: what will be kept secret, and what will not?
The story starts with the classic faceless bureaucracy, the United States government. It employs millions in its efforts to project American power around the world. Millions of them have security clearances. But it only takes one, Bradley Manning, to leak hundreds of thousands of diplomatic cables and other classified documents. Among the consequences of his leak has been serious embarrassment for diplomats who have been shocked to discover that their messages back to Washington weren’t actually faceless and confidential, and plenty of alarm over the possible unmasking of U.S. agents and informants in the field.
Those documents made their way to Wikileaks, which functions as a networked and mostly opaque collective. One man, however, Julian Assange, has lent his face to the organization and driven its strategy as it started working with the mainstream press. Those efforts have been controversial within Wikileaks, leading dissident members like Daniel Domscheit-Berg to reveal publicly secrets of Wikileaks’s own internal operations.
After the U.S. government started making threatening noises about WikiLeaks and various companies began cutting off its technical and payment infrastructure, the anarcho-lulzist collective Anonymous began launching retaliatory denial-of-service attacks. Anonymous embraces an identity of non-identity; although there are regular participants and influential members, they suppress their own personalities in favor of a symbolic Guy Fawkes mask. Those who talk to the press in insufficiently self-effacing ways — as some have — are shunned and mocked.
Anonymous’s members are of course potentially vulnerable to retaliation or arrest, if they can be identified. Aaron Barr thought he had put names to some of Anonymous’s leaders, and he told a reporter as much. In response Anonymous hacked the website and network of his employer, HBGary Federal, shutting down many of its systems and leaking highly embarrassing emails, including Barr’s attempts to propose dirty tricks campaigns against reporters.
My point is not that these organizations are identically situated; they use radically different models. Instead, I find it striking that despite their differences they are all grappling with some extraordinarily similar issues. Networks enormously extend the collaborative potential of individuals, knitting them together into larger and more tightly connected organizations that share information on an unprecedented scale. By precisely the same token, these networks also extend the power of the individual to do incredible damage to an organization’s secrets.
In this respect, Anonymous’s information-sharing strategy is all the more remarkable. Operations are discussed openly in publicly accessible imageboards and IRC channels, but by a group of anonymous participants. Who could pull a Bradley Manning on Anonymous? No one — and it is, ironically, because so much of what Anonymous “knows” is either already public or unknown even to other members.