Roots of the Online Upheaval of SOPA/PIPA May 13, 2012
Posted by Bill Rosenblatt in DRM, Law, United States.add a comment
I’m in the middle of reading a new book called Hollywood’s Copyright Wars: From Edison to the Internet, by University of Pennsylvania professor Peter DeCherney. I’ll report back on this book later; today I want to talk about a PhD dissertation that appears in a footnote in this book.
Bill Herman’s dissertation at Penn’s Annenberg School of Communication is called The Battle over Digital Rights Management: A Multi-Method Study of the Politics of Copyright Management Technologies. It was written in 2009, and it presciently anticipates the online movement that led to the downfall of SOPA and PIPA two years later.
Herman — now a professor of film and media at Hunter College in NYC — looked at four legislative developments in U.S. digital copyright policy and measured how they were influenced by three types of communication: direct communications with legislators (e.g., lobbying), the press, and online. The four developments were the Audio Home Recording Act (1992), the anticircumvention provision of the Digital Millennium Copyright Act (1998), efforts to revise the DMCA (2003-2005), and the FCC Broadcast Flag regulation (2006).
Herman’s research analyzes communications in those three arenas and grades them according to whether they tilt “strong copyright” or “strong fair use.” He finds that communications with congress, which tilted strongly “strong copyright,” predominated in the earlier years; press reporting (in the Washington Post and New York Times) was roughly balanced, with a slight “strong fair use” tilt; then online communication took over the debate with a forty-to-one “strong fair use” slant and influenced the repeal of the FCC Broadcast Flag regulation in 2007. Although Herman is unabashedly on the “strong fair use” side, his methodologies for identifying and characterizing these various communications are rigorous and do not show bias.
In his introduction, Herman writes: “While the time period under study does not include their ultimate triumph at the bargaining table — as of this writing, what I describe as the strong fair use coalition still has not won a major legislative victory — it does include the beginning of their time as a genuine force at that table.” As a prediction of the online and copyleft communities killing SOPA and PIPA, this is pretty impressive.
Herman’s thesis goes into great detail about the ways in which the “strong fair use” axis posted lots of material online to feed the debate, while the other side didn’t. It’s a trove of factual evidence about how to shape policy debate in the Internet age (and how not to). It also, in effect, shoots holes in the theory held by some strong-copyright people that a Google-led cabal caused the defeat of SOPA and PIPA.
I admit not to having read the entire 400-plus pages of the dissertation, though it contains a much more manageable 27-page introduction that summarizes the methodology and results. With that caveat in mind, I can identify one shortcoming in Herman’s methodology that, if he had corrected it, might have changed the nature of his conclusions.
Herman tracked press stories that specifically covered the four legislative developments mentioned above. But he didn’t track stories that covered the real-world marketplace of the technologies being regulated – articles by the likes of David Pogue in the Times and Walter Mossberg in the Wall Street Journal. (Nor did he track online content about the same, from the likes of TechCrunch, CNet, etc., not to mention Internet ideologues like Cory Doctorow and thousands or millions of blogs.)
If he had done this, he would have found a much more anti-DRM tilt in the press during the early-mid 2000s than he did. Articles from this period (and thereafter) took a populist, pro-consumer viewpoint: after all, people read Pogue, Mossberg, and CNet to help them choose the best digital content services and devices. The job of these writers isn’t to defend the interests of copyright owners or content creators; it’s to help sell newspapers and drive traffic to websites.
These sources routinely praise digital content services and devices that offer as many rights to as much content for as little money as possible. DRM can be used to enable new content distribution models, but it can also be used to force consumers to pay, limit interoperability, and restrict uses of content that are allowed under copyright law. Thus it makes sense that these writers would paint DRM in a negative light.
One has to wonder how much the pro-consumer point of view in this press coverage influenced legislation. The journalists who covered legislative developments during the period Herman studied did not overlap much with those who covered products and services. For example, Jenna Wortham, Jonathan Weisman, and Brian Stelter provided the bulk of legislative coverage at the Times, while over at CNet, Declan McCullagh wrote about policy and legislation while Greg Sandoval did (and does) most of the marketplace coverage.
Herman attributes the “strong fair use” coalition’s increased legislative influence to its greater effectiveness than the “strong copyright” community in putting its message out online. But I would suggest that they had a lot of help from both professional and amateur writers about consumer media technologies, who led people to wonder why technologies like DRM exist and then what role government plays in them.
It might not be as easy to gauge that influence, but it was — and is — surely significant; and that means that the press could well influence digital copyright legislation more strongly than Herman surmises. Herman seems eager to glorify the power of the Internet by itself. While there’s no doubt that Internet forces killed SOPA and PIPA, what Herman calls the “strong fair use” movement has roots outside of the copyleft academia and advocacy groups that he credits (he was an intern at Public Knowledge and considers Larry Lessig a hero).
Regardless, the defeat of SOPA and PIPA has made it clear that the online community now has a lot of power over policy debate. Gary Shapiro of the Consumer Electronics Association wrote a letter to the editor in the Times admitting that “back rooms do not exist on the Internet.” I would suggest that if the RIAAs and MPAAs of the world want to understand how to engage the online public in order to shape future legislation, Herman’s thesis ought to be required reading for them.
As a postscript, there is now a bit of overlap in coverage of digital content products and services and legislative policy, now that people are digging through the post-SOPA/PIPA wreckage and considering what to do next. David Pogue, for example, got around to actually reading the legislation back in January as it was failing. He made two badly-needed observations: that many of the objectors to SOPA and PIPA didn’t like it simply because it could cut off their supply of free content, and that such people generally didn’t have a clue about the actual legislation and acted on misinformation about it. Let’s hope that now that Pogue has connected the dots, more people will follow that train of thought to some reasonable policy developments.
Library E-Lending with DRM-Free E-Books? May 6, 2012
Posted by Bill Rosenblatt in Law, Publishing.add a comment
A recent decision by Tor/Forge Books to make their e-books available without DRM caused something of a stir in the book publishing world. Tor/Forge is the largest science fiction/fantasy publisher in the world. Although Amazon and other major e-book retailers allow publishers to decide whether they want to use DRM or not, most commercial publishers use it.
This led to some speculation on Library Journal’s TheDigitalShift website about whether Tor will still require DRM for library e-lending, where I said that retail and library lending are two completely different channels, and if a publisher drops DRM for retail, it probably has no bearing on whether it will drop DRM for e-lending. Indeed, the tech publisher O’Reilly & Associates is known for its anti-DRM stance but uses DRM in e-lending (and uses a form of watermarking in its downloadable PDFs).
In fact, Tor’s official policy on library e-lending is not to allow it at all, because its corporate parent Macmillan (one of the “Big Six” trade publishers) doesn’t allow it. But what would happen if a library purchased a Tor e-book and made it available for lending?
First of all, that’s not how the vast majority of public library e-lending works. Public libraries use OverDrive’s system, which is a “white label” service that packages e-books in DRM and handles all of the aspects of the website and lending. (OverDrive currently offers a choice between the Mobipocket DRM for Kindles and Adobe DRM for just about everything else.) So OverDrive would have to make the DRM-free e-book available, and that’s not how its system works . In other words, libraries tell OverDrive which titles they want and pay for them, then OverDrive does the rest.
Secondly, even if a library ran its own system (which a handful do, such as the Douglas County public library system in Colorado), it would be violating the Terms of Service of the retailer from which it bought the DRM-free e-book. That gets us back to the legal concept of Digital First Sale.
The concept of First Sale (known outside the United States as “exhaustion”) in copyright law says that once you lawfully obtain a copyrighted work, you can do what you want with it: sell it, lend it, throw it away, etc. The applicability of First Sale to physical media products is straightforward, but its applicability to digital downloads, such as e-books, is as clear as mud. The U.S. Copyright Office was asked for an opinion on Digital First Sale over ten years ago; its 2001 report essentially said “Not now, maybe later.”
Digital First Sale is currently a rather arcane topic in copyright law, but a showdown over the concept may be coming soon. E-reading is exploding in popularity, and publishers in certain genres (at the moment, mainly science fiction and tech, i.e. genres for tech-savvy readers) are DRM-free.
The third development that may lead to a Digital First Sale showdown is a project at the Berkman Center for Internet and Society at Harvard called the Digital Public Library of America (DPLA). Remember all those millions of e-books that university libraries digitized for Google, which led to publishers’ and authors’ huge lawsuit against Google — which is still unresolved? The DPLA intends to aggregate them — as well as other sources of material, such as the Internet Archive — and put them to use at the service of public libraries nationwide.
The DPLA is expected to launch next year. The current plans are still taking shape, but it seems clear that it needs Digital First Sale in order to have any impact at all; otherwise publishers can continue to forbid e-lending, and DPLA won’t have much content to offer other than public domain material that’s available for free anyway.
As I’ve said before, the forces arrayed against Digital First Sale are formidable: they include authors, publishers, and retailers. For example, the DPLA’s proposal to make works available that are at least five or ten years old seems like it will meet stiff resistance from all of those camps. But there are few (if any) entities on earth better equipped to fight for Digital First Sale than Berkman Center, with its Harvard Law professors and its corporate sponsorship from the likes of AT&T, Google and Microsoft. In fact, if and when the showdown over Digital First Sale comes, it will be interesting to see what side of the issue Google takes — as both a beneficiary of looser copyright laws and an e-book retailer.
CCC’s OnCopyright Conference April 4, 2012
Posted by Bill Rosenblatt in Events, Law.add a comment
If you follow @copyrightandtec on Twitter, you may have noticed lots of tweets last Friday, when I attended the Copyright Clearance Center’s OnCopyright conference at Columbia Law School in New York. (Link to full video here.)
OnCopyright is a true open-ended and open-minded discussion about copyright issues. Apart from a welcoming speech by CEO Tracey Armstrong and neutral panel moderation by CCC executives, CCC does not insert itself into the event; it just invites speakers from across the copyright spectrum and lets them have at it. The concept is refreshing and bold.
It’s a terrific show, and this year’s edition served to point out some of the problems with copyright today. The best part of it was the featured speech by Robert Levine, author of the wonderful book Free Ride. Levine summed up current problems with copyright neatly when he said, “Right now we have the worst of all worlds: copyright is too long and too broad, but we’re not enforcing it.”
Levine’s speech contained several keen insights and rhetorical zingers. Two of my favorites, paraphrasing: “The MPAA claims that piracy is costing seventy-teen skadillion dollars. Google claims it is costing $2.56. (I’m only kidding… about the second one.)”; “Yes, I could do all the things that publishers do by myself, but then I wouldn’t have time to do the writing. I could also grow my own vegetables.” But he’s a journalist at heart and thus deals primarily in facts instead of theories or agendas. And he got himself an excellent factual corroboration of the statement above during the conference.
It came through Erin McKeown, a musician, Future of Music Coalition board member, and fellow at the Berkman Center for Internet and Society at Harvard. She served as a panelist (and performed some of her music). As an indie musician and Berkman fellow, McKeown reflexively follows the anti-Big-Media, copyright-too-restrictive line of thought. For example, she professed a distaste for the kind of “backroom deals” that led to the aborted SOPA and PIPA legislation.
Yet on the other hand, McKeown told a story of how her music was used in a commercial in eastern Europe; she wanted to be compensated fairly, but a lawyer told her that it would take one to five years (to say nothing of legal fees) to pursue the copyright claim.
As Rob Levine pointed out, whether a publisher or record label is “good” or “evil” is not the point. Here’s an artist whose work was exploited for commercial purposes with neither permission nor compensation. She wanted fair compensation, not punitive damages. And she was told that effectively there’s no way to get it.
In other words, the system is currently set up so that virtually the only way to enforce copyrights is to be able to enlist the services of lawyers over a long period of time and to be able to wait that long period before perhaps seeing any income after legal fees. (That’s why indie artists like collective licensing: they get something as opposed to nothing, and they get it fairly quickly and with minimal effort.) At the same time, when I brought up the idea that the copyright legal system’s lack of “bright lines” makes it too inefficient and difficult to enforce in the digital age — my usual lone-voice-in-the-wilderness complaint — I got nothing but pushback, mostly from lawyers, claiming that such “flexibility” is a benefit, not a drawback.
More than one content creator at OnCopyright confessed to having mixed feelings when they found their work on illegal sites: they were angry that their work was being taken without their permission yet happy and flattered that someone was interested enough to do so. Trouble is, flattery doesn’t put food on the table.
UK Digital Economy Bill Survives Last Legal Challenge March 11, 2012
Posted by Bill Rosenblatt in Fingerprinting, Law, UK.1 comment so far
The UK Court of Appeal last week dismissed a final attempt by two of the country’s largest ISP’s, BT (British Telecom) and Talk Talk, to have the 2010 Digital Economy Act ruled illegal due to incompatibility with European law. There are various features of the Digital Economy Act, but as one result of this decision, the UK will become the next country to implement a graduated response regime similar to the Hadopi system in France.
Of course, the British Phonographic Industry (BPI), the equivalent to the RIAA in the United States, lost no time in hailing the decision and claiming almost total victory over ISPs in the two-year legal battle. But the word “almost” takes on an interesting resonance regarding the one point that the media industry didn’t really win: the apportionment of costs for the progressive response program.
As I keep saying (and thereby quoting the brilliant Jonathan Zittrain of Harvard Law School), the question of who pays is the “gravamen” — the essence or most serious part — of these disputes over copyright policing. The final Court of Appeal process revealed payment terms that otherwise got very little attention during the deliberations over the Digital Economy Act. It turns out that copyright owners have to pay 75% of the costs of running the network monitoring functionality, the judicial process, and appeals costs. ISPs have to pay 25% of the first two but none of the third cost category; the latter was the point that ISPs won.
The financial terms actually fall far short of the results that copyright owners would like to achieve in similar legal disputes. For example, Viacom would no doubt like YouTube (and other content-sharing sites) to pay all of the costs of enforcing copyright on their sites. Such costs would run into millions per year (whether in pounds or dollars).
By that standard, as far as this particular aspect of the Digital Economy Act is concerned, I would not call this a victory for copyright owners at all; I’d call it a 75% capitulation.
Yet I would also say that it’s good news for the industry in general. If copyright owners are responsible for the majority of costs of operating the progressive response system, then they will have an incentive to see that it runs accurately, fairly, and efficiently. If the technical mechanism for detecting infringers is too aggressive, then they will spend too much money on the appeals end (and deal with public outcry which could lead to repeal of the law). If it’s too loose, then they don’t catch infringers and waste their money. The onus for efficiency and accuracy will be on the content recognition and network monitoring vendor that is selected to run the system. If the technology doesn’t work well, the vendor will need to improve it or be (as they say over there) sacked. That’s as it should be.
These graduated response regimes are best viewed as experiments in reducing online copyright infringement, and they should be continued if an appropriate balance among accuracy, cost-efficiency, and fairness to the public can be found.
The missing piece in the Digital Economy Bill is that that copyright owners have no incentive to ensure that the technical mechanism does not disadvantage users by hindering the ISPs’ network performance. My understanding is that this aspect of it needs to be determined by Ofcom, the UK’s telecommunications regulator, and that this has not happened yet (feel free to correct me by comment if I’m wrong). Ofcom needs to ensure that technical mechanisms do not interfere with ISPs’ performance and that any disputes should be resolved by facts and independent measurements. And if it turns out that ISPs need to install more equipment (e.g. faster servers or routers) to restore network efficiency, then copyright owners should contribute to those costs as well.
At a more abstract level, I’d say that copyright owners have been given a bigger prize than the Act itself: the right and responsibility, mandated by law, to ensure that these rights technologies work fairly and efficiently. (Copyright owners already pay network monitoring companies like MarkMonitor and Peer Media, but not as part of an institutionalized, nationwide infrastructure that is connected to legal apparatus.) This will be healthy for the rights technology industry.
In this way, the Digital Economy Act is an improvement over anticircumvention legislation, such as in the U.S. Digital Millennium Copyright Act, which gives vendors of DRM technology legal backstops so that they have limited accountability for how well their technologies actually work. True accountability only comes if the entity paying for the technology has no choice but to demand that it works well.
Public Knowledge’s “Blueprint” February 28, 2012
Posted by Bill Rosenblatt in Law, United States.1 comment so far
My recent review of William Patry’s book on copyright reform segues neatly into Tuesday’s announcement of the Internet Blueprint campaign by the copyleft advocacy group Public Knowledge (PK). Apparently PK has taken some grief for its vociferous objections to the SOPA and PIPA legislation, and the ACTA agreement, without coming up with alternative ideas of its own.
As PK would have everyone believe, the Internet Blueprint is intended to remedy that situation. It’s a set of ideas for copyright reform, which come complete (in true lobbyist style) with draft legislation; and it’s open to ideas for expansion.
It also has nothing whatsoever to do with the objectives of SOPA and PIPA, which — in case anyone has forgotten — were to reduce copyright infringement.
Here is a quick summary of most of the ideas in Public Knowledge’s Internet Blueprint:
- Reduce abuse of the notice and takedown system in Section 512 of the Digital Millennium Copyright Act (DMCA) by imposing additional requirements on takedown notices and fines on bogus ones, as well as expanding the “safe harbor” granted to internet service providers under this law.
- Impose regulations on the US Trade Representative that would forbid negotiating intellectual property terms in secret (as was done in the ACTA process).
- Relax section 1201 of the DMCA by making it legal to hack DRMs for lawful uses of copyrighted material protected by them.
- Shorten copyright terms from life of the creator plus 70 years to life plus 50 years.
- Empower the Federal Trade Commission (FTC) to require labeling of DRM on digital content that uses it.
- Prohibit various types of abuses of copyright law, such as deceptive warning notices and frivolous lawsuits.
- Expand Fair Use.
Nope, nothing in here about reducing infringement. Even Consumer Electronics Association CEO Gary Shapiro, while being harshly critical of the music industry and its push for SOPA and PIPA, referred to “the very real problem of Internet piracy” and called for the RIAA to work with him on solutions that are more “reasonable” than those pieces of legislation. PK’s Internet Blueprint is not about working with anyone to reduce piracy.
Furthermore, for an organization that professes to be against larding the Internet with excessive regulations, this is a very interesting list of additional regulations. For example, instead of adding qualifying conditions to DMCA 1201, why not just call for its repeal?
Public Knowledge’s home page says: “In the weeks since SOPA and PIPA, many people have been wondering ‘what now?’ Policymakers here in DC ask us a similar question — ‘[I]f you don’t like SOPA and PIPA, where are your ideas?’” Some people may have asked PK that question, but the Internet Blueprint doesn’t answer it. I think a more accurate statement is probably something like, “After the success of the SOPA and PIPA protests, we would like to see what other items on our agenda we can get the public excited about.” Connecting the Internet Blueprint with SOPA and PIPA is just disingenuous.
Of the actual ideas in the Blueprint, the abuse-curbing regulations seem sensible, and the proposed legislation on DRM labeling is unworkable — as the FTC probably knows, having looked into this issue in depth back in 2009. Otherwise, for the record, I’m not expressing opinions on PK’s ideas, except to say that in general I am not a fan of regulating technology, and I believe that the United States copyright law is already too complicated. (I am particularly not a fan of DMCA 1201, though not for the typical set of reasons — but that’s a different discussion.)
It’s a good thing to try to rally the public around actionable ideas rather than feel-good slogans. But in this case, PK is guilty of excessive opportunism — or what politicians like to call “overplaying their hand.” Just as one shouldn’t bother asking vegetarians for better steak recipes, one shouldn’t bother asking Public Knowledge for ideas on reducing copyright infringement.
Hadopi Becomes un Ballon de Football Politique February 21, 2012
Posted by Bill Rosenblatt in Europe, Law, Uncategorized.2 comments
Those of us who deal with the so-called copyright wars here in the United States can take comfort in one thing: the battles between Big Media and Big Tech have mostly avoided getting sucked into this country’s corrosive, debilitating party politics.
The “balanced copyright” movement has some alignment with leftist politics — not for nothing do many call it “copyleft” — but that’s mostly confined to academics and a handful of not-very-industry-aligned advocacy groups. Now that SOPA and PIPA are dead, the Republicans who run Congress can’t decide whether to continue to align themselves with the politically entrenched media industry and promote further legislation, or to tout individual liberties (and appease the burgeoning Big Tech lobby) and repudiate such legislation. Nobody involved in this year’s presidential election has touched the online copyright issue.
France, however, shows a completely different picture. As a recent New York Times article describes it, the Hadopi progressive response legislation has been in place for two years, warnings have been issued to consumers caught downloading illegally, and the first group of repeat offenders — 165 of them — have been handed over to the justice system for potential fines and suspension of their Internet accounts. The first warnings were sent out in October 2010, about 1-1/3 years ago.
First of all, let’s compare this with the RIAA’s campaign of individual lawsuits in the US: the RIAA appears to have gone after between 18,000 and 35,000 people over a period of five years, or 3600-7000 per year on average. Even if one allows for the fact that France has 19% of the Internet-using population of the US, the number of French Internet users thus affected by Hadopi is only 18-35% of the proportionate number of US Internet users sent nastygrams by the RIAA.
Every study of the Hadopi system that has been done so far has shown the system to be successfully reducing illegal downloading and increasing legitimate consumption of content, particularly music sales on iTunes. (The effect of the law on subscription streaming services like Deezer and Spotify hasn’t been measured.) One would expect the “usual suspects” to debunk the studies, but they haven’t. Instead, there have been statements such as “the effects are undeniable but hard to quantify” (the liberal newspaper Le Monde) and “Apparently some of its intimidation is having a psychological effect” (La Quadrature du Net, a French advocacy group which otherwise argues that Hadopi is a waste of taxpayers’ money to solve a nonexistent problem).
In other words, like it or not, the Hadopi system seems to be working so far.
French President Nicolas Sarkozy, who actively supported the Hadopi law, is up for re-election himself. As a result, online copyright has become in France what we in America call a political football. Socialists have been the most vocal enemies of the Hadopi law in France and have been calling for flat-tax statutory licenses, following the ideas of the Electronic Frontier Foundation, Terry Fisher of Harvard Law School, and other copyleft figures. Yet now that the right-wing candidate Marine Le Pen is now stealing the socialists’ thunder by calling for a statutory license herself, the socialists are backing away from the idea, calling instead for some hazy combination of taxes and crackdowns on sites that enable illegal copying. Nevertheless, both anti-Sarkozy parties have professed Hadopi hatred, as both a populist gesture and a Sarkozy differentiator.
This is just a little bit crazy. Conservatives are supposed to be for individual liberties, low taxes, and small government. So what is a hard-right politician doing embracing a system that amounts to a tax on content, no matter how much each consumer uses, and that distributes money to content creators through opaque, government-entrenched entities like the collecting society SACEM? And what are the socialists, who are supposed to be for big government and equitable distribution of resources, doing opposing it? I’m sure that I, as an American, do not have a proper understanding of French politics. But to me, this smacks of political opportunism and demagoguery of the type that we are deluged with in this US election year on issues such as healthcare, taxes, gay marriage, etc., etc. It’s sad.
I think five years is a reasonable timeframe in which to judge the success of Hadopi, so it’s premature so far. Die-hard infringers will find ways around the system, such as through anonymizers, virtual private networks, and file encryption; we have yet to see how popular such methods become. The fairness and effectiveness of the enforcement and appeal mechanisms have yet to be established. But one hopes that Hadopi’s educational effect coupled with the fear of getting caught will reduce infringement enough to make it worthwhile; in that case, other countries should adopt progressive response with a strong educational component too.
Let Hadopi-haters do their own serious quantitative studies, and let’s compare the results. Let’s make the judgments on facts, and for God’s sake let’s not let political posturing pollute the atmosphere. Then let’s see the Copyright Alert System assess what’s working in Hadopi and adopt it here in the United States, where — at least for the moment — no one need worry about the issue being demagogued to death in election years.
Patry on Copyright Repair February 12, 2012
Posted by Bill Rosenblatt in Book reviews, Law.3 comments
The prolific copyright authority William Patry wrote a book in 2009, Moral Panics and the Copyright Wars, which was a jeremiad against the current copyright system along with pleas for reform — but with no ideas about how to reform it. In response to criticism, Patry promised a follow-up work that would supply the “prescription out of the current situation.” That book would be titled How to Fix Copyright, and it would come out in the beginning of 2011.
So here we are in early 2012. The book is now out. But as a prescription for how to fix copyright, it’s a disappointment.
First of all, the reader has to wade through a lot of complaints about today’s copyright system, and other redundancies to Moral Panics, to get to any suggested solutions. Furthermore, Patry — apparently against the advice of his editors — refused to create a summary that neatly lists his ideas for reform. It is true that the book contains deeper ideas that it would be unfair to reduce to list items, and I’ll get to some of these. But first, here’s a list of succinctly statable copyright reform ideas in Patry’s book:
- Reduce the term of copyright, because most works make money for their owners in the first few years after release, and after that they are best put into the public domain.
- Make copyright registration mandatory instead of automatic, so that only those who really want protection for their works can get it.
- Pass strong “orphan works” legislation, so that works whose owners won’t or can’t claim them can be enjoyed by all instead of being locked up in limbo.
- Create comprehensive global rights registries, so that copyright users can instantly tell who owns what and license works appropriately.
- Streamline the impenetrable maze of copyright licensing entities, rules and cross-border inconsistencies, so that it becomes easier to access content legally worldwide.
- Create more statutory licenses, blanket licenses, and levies, to make copyright easier to administer and rights holder compensation easier to generate.
- Price copyrighted works differently in different geographies to reflect economic realities, because people in economically challenged countries can’t possibly afford the prices for content that people in first-world countries pay.
- Change copyright law to accommodate the new breed of digital artists whose tools necessarily involve copying pieces of copyrighted material.
- Abolish legal constructs that impose or support “digital locks” on content, such as DMCA 1201, because they unfairly restrict technological development as well as Fair Use.
Go to any other established copyleft source — Lessig, Litman, Vaidhyanathan, Public Knowledge, etc. — and you’ll find much the same list. One exception, perhaps, is #7, geographically differentiated pricing (though this has little to do with copyright law per se). This has been shown to work well for physical products such as CDs: for example, Microsoft tried it for software and found its piracy rates in countries like China significantly reduced. But it’s hard to see how you make it work for pure digital content without lots of impractical cross-border enforcement implications (mandatory geolocation-based filtering, anyone?).
Now that we’ve gotten the Cliffs Notes version of this book out of the way, let’s get to the more novel and interesting ideas. First is Patry’s call for resetting goals of copyright reform so that they focus on the original objective of copyright. The original objective has been to maximize the works available to the public by providing creators incentives to create them. Changes to copyright law have often been enacted with the objective of reducing infringement and preserving revenue for copyright owners. That goal overlaps with the original one, but it’s not the same thing. He also says that future changes should be based on hard evidence that a proposed change will help achieve the objective rather than “blind faith” that it will do so. The evidence-vs.-faith argument makes great sense and is hard to argue with in principle.
Yet Patry doesn’t discuss how this could actually be implemented in the U.S.; he mainly provides the counterexample of the UK Digital Economy Bill and the lack of analysis that went into it when it was rammed through Parliament. The normal U.S. process in implementing a law that touches the business world is for lobbying groups to influence members of Congress — and in many cases, to even propose legislation drafts. In the case of copyright, Congress has a nonpartisan Copyright Office that is supposed to advise it on such matters. Patry would certainly know to what degree the Copyright Office could act as the source of the independent “impact statements” he seeks, since he worked there himself.
The Office does evaluate proposed changes to the law today, though in tightly controlled ways such as the triennial rulemaking on DMCA 1201. It does get lots of “input” from lobbyists and (as I know from my own experience) hungers for truly independent expertise. But the Office does not have the capacity to evaluate the economic, technological, and behavioral issues that come into play when judging the impact of proposed changes to the law. The European Commission’s Special Advisor program could be a model for what Patry has in mind: it hires outside experts to consult (for nominal fees) after they pass strict conflict-of-interest vetting processes.
But if the real goal of copyright is to maximize the amount of works available to the public, then it seems to me that the evidence is before us today and is so obvious as to require no studies at all. Sites like YouTube, Flickr, Scribd, and any number of free music sites offer exploding numbers of works that are supposedly covered under copyright (or some subset of copyright, such as Creative Commons licenses) and are there for promotional or non-pecuniary reasons. The numbers are huge even without the infringing material. And I suspect that most people who upload original material to these sites don’t think about copyright at all. How does this state of affairs require “reform”?
Patry discusses two other ideas that complicate his principles of reform. He insists that for copyright to do its job, content creators should be able to make livings from their work. So far, so good. He says that the current system favors major media companies, and the benefits do not “trickle down” to individual content creators. Also hard to argue with.
Yet once again, he doesn’t really describe how to fix this problem. Without explicitly tying them to the problem of compensation for individual content creators, he calls for more blanket or statutory licenses, in which licensing entities set monetary terms for content on behalf of large numbers of or “all” content creators respectively, and levies, which are taxes on hardware and blank media. All of these result in license fees that are somehow disbursed (after being reduced to cover “overhead”) to content creators through “magic black boxes” that are affiliated with or beholden to governments. Such entities — at least in their current states — are often far cries from independence and fact bases.
He also calls for global rights registries, which should make licensing and compensation fairer and more efficient. But such things would have to coexist with the collecting society (i.e. government-affiliated magic black box) system that we have today — or the latter would have to be drastically changed. This is a highly promising area of thought; unfortunately Patry doesn’t connect the dots far enough to pursue it.
The second idea in How to Fix Copyright that complicates Patry’s copyright reform principles is his foray into the dark and dangerous waters of dichotomy between “culturally important” content and “commercial trash.” Patry, a classically-trained clarinetist who commissions composers to write works for his instrument (don’t get me wrong: this is a good thing!), wants to preserve “cultural” content and has no interest in Hollywood products such as Batman 3, American Pie 4, or Miley Cyrus. In this, Patry parts company with his employer Google, whose lobbyist Derek Slater recently said, in justifying YouTube, that it’s wrong to judge content by “quality” because “one man’s trash is another man’s treasure.”
The original purpose of copyright runs into some trouble over this ambiguity: should copyright seek to maximize “what the people want” or works that meet some cultural or “quality” criteria? There must surely be some history behind this conundrum. Patry must know it from his background as law professor and textbook author, but he doesn’t share it here. If it’s the former, then it seems to me that the system is working just fine as is. The major media companies are expert in recognizing and satisfying popular demand, even if they do less and less work in creating the actual content. And for those who aren’t interested in big-media content, there’s YouTube, SoundCloud, Scribd, and so many other sources of content that doesn’t even cost anything.
But if the purpose of copyright is really to maximize “quality” or “cultural” works, then what about creating (and properly funding) a Department of Culture and a cabinet-level Secretary to run it — thereby putting the United States on par with most other developed countries? Patry stops short of recommending this, but he tends in that direction by calling for “direct funding [of] diverse cultural works” (i.e. patronage), expressing admiration for crowd-funding entities like Kickstarter, and generally appearing to see “marketing” as an egregious form of corporate mass hypnosis.
The final big idea in Patry’s book that merits discussion is his treatment of Fair Use. Patry spends an entire chapter singing the praises of Fair Use as a deliberately vague and conceptual construct. He takes an expansive view of Fair Use that is seemingly at odds with Larry Lessig’s position that it is a “wedge” between legal use and infringement that has been overloaded in the digital age. It’s also, as I’ve said many times, at odds with digital reality today.
Patry contrasts U.S. Fair Use with the Fair Dealing system used in the UK, Canada, and Australia, and with the similar scheme implemented through the European Union Copyright Directive. He calls those systems “closed list” systems because they codify uses of content that aren’t infringement (such as parody and criticism) rather than using the “open-ended” concepts found in U.S. law. He says, “Critics of the U.S. fair use doctrine point to the alleged ‘open-ended’ nature of fair use and argue that it lacks certainty.” Yep, it sure does. Fair Use’s lack of certainty makes it impracticable in the digital age as never before. Lessig has said that Fair Use is really just the right to hire a lawyer; Patry either doesn’t agree or doesn’t care.
This attitude that the copyright systems’ efficacy should be based on laws as written, and as executed by lawyers, governments, and government-sanctioned entities, pervades How to Fix Copyright. In other words, not only is the book short on implementation recommendations, but it also doesn’t look far enough outside the system to determine how to fix it. In his previous book, Patry had the temerity to suggest that “perhaps the answer to the machine is in the machine,” referring to Google’s use of fingerprint-based copyright filtering technology as an effective way of reducing piracy and monetizing content on YouTube. But in How to Fix Copyright, he spends an entire chapter recanting this statement. This chapter that contains so much rhetorical contortion (not to mention misunderstandings of technology and the market) that I bet it’s the result of Patry’s copyleft colleagues giving him grief about what he said last time.
And that’s the biggest problem I personally have with this book. The route to getting many content creators paid is neither through big-government “magic boxes” nor through laws that are for all intents and purposes unenforceable without technology or unless you can afford to both hire a good lawyer and wait until the litigation or negotiation is over. I don’t disagree that the copyright system needs reforming, but the original ideas for reform in this book have questionable practical value without plausible explanations of how they might actually work.
William Patry is a highly learned and respected figure in copyright with depth and breadth of interests that do him credit; his writing is articulate, well-researched, and persuasive. One can certainly read similar enumerations of copyleft ideas from other sources that are more shallow, strident, doctrinaire, and/or uninformed. But in the end — and unlike in copyright — the ideas matter more than the expression, and in How to Fix Copyright, the ideas underwhelm.
IFPI Claims Success of Progressive Reponse in Curbing Infringement January 30, 2012
Posted by Bill Rosenblatt in Europe, Law, New Zealand.3 comments
The International Federation for the Phonographic Industry (IFPI), the global umbrella of national music trade associations like the RIAA in the United States, published its annual Digital Music Report last week. Among the most interesting findings is results of studies of the effects of the progressive response law enacted in France in 2009.
The French Creation and Internet Law, which is referred to as “Hadopi” after the agency it created (Haute Autorité pour la Diffusion des Oeuvres et la Protection des droits sur l’Internet), is one of a handful of so-called progressive response regimes, in which ISPs in a given country are obliged to respond to complaints about file-sharing by issuing a series of increasingly stern warnings and then potentially suspending their Internet accounts or fining them.
IFPI worked with Nielsen to measure Hadopi’s effects on file-sharing in France, and found that the effect was to decrease file-sharing by 26% over the year after Hadopi’s October 2010 implementation, although the numbers have been creeping back up a bit since October 2011. IFPI’s report also published the results of a separate academic study by economists at Carnegie-Mellon University and Wellesley College that claims a net increase of 22.5-25% in paid iTunes music downloads from before to after Hadopi was implemented.
The IFPI report also cites studies that show that warning messages have an effect: a May 2011 study found that 50% of people who either received a Hadopi notice or knew someone who got one stopped their illegal file-sharing. The same measurement for South Korea, another country with progressive response in place, was 70%.
Critics of progressive response reply that P2P file-sharing has been decreasing anyway, that file-sharing is “yesterday’s problem” as copyright infringement moves from file-sharing networks to torrent sites, cyberlockers, and other places. It’s hard to argue that the reduction of 26% in French file-sharing means “piracy has decreased by 26%” (and in fact IFPI isn’t arguing that at all). Yet the graph in the IFPI report clearly indicates a drop in file-sharing activity that coincides with the deployment of Hadopi.
It’s worth bearing in mind that the vast majority of Hadopi activity is warnings, which fall under the heading of “education” instead of “technical protection measures,” because the warnings don’t actually prevent users from doing anything that they could do before.
At the same time, there is one sour note in the IFPI report: in a discussion of the graduated response system in New Zealand (which accompanied a decrease in P2P usage of 16%), rights holders complain that “the high cost of notifications to ISPs … could prevent the graduated response system being used over the long term to optimum effect.” In other words, it’s not enough to have a government-mandated requirement for ISPs to act on complaints of file-sharing; copyright owners also don’t want to have to pay to generate the complaints. I don’t know what they call this in New Zealand, but in France, Marie Antoinette might have called it “Qu’ils ont de la brioche et la manger aussi.”*
P.S. The IFPI Digital Music Report also contains the very exciting statistic that the total of paying users of music subscription services has shot up 65% over the past year to an estimated 13 million plus. That number blows by the 10 million that I thought would be reached by next September.
*”Let them have their cake and eat it too.”
Creative Commons for Music: What’s the Point? January 22, 2012
Posted by Bill Rosenblatt in Law, Music, Rights Licensing, Services, Standards.22 comments
I recently came across a music startup called Airborne Music, which touts two features: a business model based on “subscribing to an artist” for US $1/month, and music distributed under Creative Commons licenses. Like other music services that use Creative Commons, Airborne Music appeals primarily to indie artists who are looking to get exposure for their work. This got me thinking about how — or whether — Creative Commons has any real economic value for creative artists.
I have been fascinated by a dichotomy of indie vs. major-label music: indie musicians value promotion over immediate revenue, while for major-label artists it’s the other way around. (Same for book authors with respect to the Big 6 trade publishers, photographers with respect to Getty and Corbis, etc.) Back when the major labels were only allowing digital downloads with DRM — a technology intended to preserve revenue at the expense of promotion — I wondered if those few indie artists who landed major-label deals were getting the optimal promotion-versus-revenue tradeoffs, or if this issue even figured into major-label thinking about licensing terms and rights technologies.
When I looked at Airborne Music, it dawned on me that Creative Commons is interesting for indie artists who want to promote their works while preserving the right (if not the ability) to make money from them later. The Creative Commons website lists ten existing sites that enable musicians to distribute their music under CC, including big ones like the bulge-bracket-funded startup SoundCloud and the commercially-oriented BandCamp.
This is an eminently practical application of Creative Commons’s motto: “Some rights reserved.” Many CC-licensing services use the BY-SA (Attribution-Share-Alike) Creative Commons license, which gives you the right to copy and distribute the artist’s music as long as you attribute it to the artist and redistribute (i.e. share) it under the same terms. That’s exactly what indie artists want: to get their content distributed as widely as possible but to make sure that everyone knows it’s their work. Some use BY-SA-NC (Attribution-Share-Alike-Noncommercial), which adds the condition that you can’t sell the content, meaning that the artist is preserving her ability to make money from it.
It sounds great in theory. It’s just too bad that there isn’t a way to make sure that those rights are actually respected. There is a rights expression language for Creative Commons (CC REL), which makes it possible for content rendering or editing software to read the license (in XML RDFa) and act accordingly. As a technology, the REL concept originated with Mark Stefik at Xerox PARC in the mid-1990s; the eminent MIT computer scientist Hal Abelson created CC REL in 2008. Since then, the Creative Commons organization has maintained something of an arms-length relationship with CC REL: it describes the language and offers links to information about it, but it doesn’t (for example) include CC REL code in the actual licenses it offers.
More to the point, while there are code libraries for generating CC REL code, I have yet to hear of a working system that actually reads CC REL license terms and acts on them. (Yes, this would be extraordinarily difficult to achieve with any completeness, e.g., taking Fair Use into account.)
Without a real enforcement mechanism, CC licenses are all little more than labels, like the garment care hieroglyphics mandated by the Federal Trade Commission in the United States. For example, some BY-SA-licensed music tracks may end up in mashups. How many of those mashups will attribute the sources’ artists properly? Not many, I would guess. Conversely, what really prevents someone who gets music licensed under ND (No Derivative Works) terms from remixing or excerpting in ways that aren’t considered Fair Use? Are these people really afraid of being sued? I hardly think so.
This trap door into the legal system, as I have called it, makes Creative Commons licensing of more theoretical than practical interest. The practical value of CC seems to be concentrated in business-to-business content licensing agreements, where corporations need to take more responsibility for observing licensing terms and CC’s ready-made licenses make it easy for them to do so. The music site Jamendo is a good example of this: it licenses its members’ music content for commercial sync rights to movie and TV producers while making it free to the public.
Free culture advocates like to tell content creators that they should give up control over their content in the digital age. As far as I’m concerned, anyone who claims to welcome the end of control and also supports Creative Commons is talking through both sides of his mouth. If you use a Creative Commons license, you express a desire for control, even if you don’t actually get very much of it. What you really get is a badge that describes your intentions — a badge that a large and increasing number of web-savvy people recognize. Yet as a practical matter, a Creative Commons logo on your site is tantamount to a statement to the average user that the content is free for the taking.
The truth is that sometimes artists benefit most from lack of control over their content, while other times they benefit from more control. The copyright system is supposed to make sure that the public’s and creators’ benefits from creative works are balanced in order to optimize creative output. Creative Commons purports to provide simple means of redressing what its designers believe is a lack of balance in the current copyright law. But to be attractive to artists, CC needs to offer them ways to determine their levels of control in ways that the copyright system does not support.
In the end, Creative Commons is a burglar alarm sign on your lawn without the actual alarm system. You can easily buy fake alarm signs for a few dollars, whereas real alarm systems cost thousands. It’s the same with digital content. At least Creative Commons, like almost all of the content licensed with it, is free.
(I should add that I wear the badge myself. My whitepapers and this blog are licensed under Creative Commons BY-NC-ND (Attribution-Noncommercial-No Derivative Works) terms. I would at least rather have the copyright-savvy people who read this know my intentions.)
Public Library E-Book Lending Must Change to Survive December 4, 2011
Posted by Bill Rosenblatt in DRM, Law, Publishing, Uncategorized.11 comments
A few events over the past few weeks illustrate the downward arc that I have suggested is in store for public libraries in the e-book age. First, Amazon introduced its own e-book “lending library” for members of its $79/year Amazon Prime service, which allows users to “borrow” one e-book at a time, with no due dates. Second, yet another major trade book publisher, Penguin, got into a spat with public libraries over e-book lending. Penguin stopped offering new titles and withheld Kindle access to all titles, out of unspecified security concerns with OverDrive (the service that powers most U.S. e-book library lending) and Amazon. (Penguin subsequently restored access for existing titles, but not for new ones.)
The Penguin incident is only the latest in what will undoubtedly be a long series of squabbles between publishers and libraries over e-book lending. In fact, five of the “Big Six” U.S. trade book publishers are now either limiting their e-book licensing to libraries or not licensing at all — and the sixth (and largest), Random House, is reportedly reconsidering its library e-book licensing policies. Such spats may well lead to a world of off-putting restrictions and confusion for libraries and their patrons.
Libraries have two fundamental problems here: they have less control over the situation than publishers do, and they are about to get some serious competition from the private sector. An article in Publishers Weekly gives an overview of Amazon’s e-book lending feature and its implications for publishers and authors. In a nutshell, the program is currently limited to a few thousand titles that originate either from Amazon itself or from smaller publishers that still sell e-books to Amazon under a wholesale model, as opposed to the “agent” model used by most major trade publishers, which forbids such activity.
But the Publishers Weekly piece only covers the impact of e-book lending on publishers and authors, many of whom are raising a fuss about Amazon’s program. It says nothing about the program’s impact on public libraries. The executive director of the American Library Association (ALA), Keith Fiels, has publicly expressed a lack of concern over the impact of Amazon’s lending program, given its limited range of titles and that it’s part of a subscription program that includes other features such as streaming video and free expedited shipping. The ALA is more concerned about major-publisher moves like Penguin’s.
Indeed, public libraries are experiencing major growth in e-book lending, especially since Amazon joined the e-lending world by opening up its DRM to enable lending and integrating it with OverDrive’s library lending service. Another piece of evidence that library e-lending is expanding is the entry of a Seattle-based startup called BlueFire Productions as the first serious competitor to OverDrive in the public library space.
At bottom, this is about two things: ways to make e-books available legally for free, and the promotional value of free distribution. That’s why libraries should be worried. First, consumers generally don’t care where they get free legal e-books, as long as they are available conveniently and can be read on their favorite devices. Second, what Amazon has started as a limited service that’s only available to an elite tier of customers will surely become more widely available and with more titles, especially with competitors like Barnes & Noble constantly looking for ways to differentiate themselves from the market leader.
Amazon subsidizes the wholesale cost of e-books that it lends to Amazon Prime members. It does this to make its own services and devices more attractive, not to spur sales of those e-books. If and when B&N offers an equivalent feature, it will undoubtedly do the same.
If I were Keith Fiels at the ALA, I would be very, very afraid. The e-book publishing world may be about to split up into the equivalent of the music industry’s major and indie labels: major labels tend to make deals that maximize revenue and limit free promotion, while indies try for maximum promotion in hopes of getting revenue later. When you apply this dichotomy to publishers and e-books, you will see that libraries will inevitably get squeezed out.
The majors will make life increasingly difficult for public libraries through refusal to license or restrictive and confusing licensing terms. Meanwhile, smaller publishers will “lend” their titles through Amazon and other e-book services — and will most likely be happy with the arrangement for the promotional value it gets them. And some indie publishers will give their e-books away outright — through e-book retailers or through sites like Facebook — in hopes of getting exposure for their authors and selling hardcopy titles, just as thousands of indie musicians used to give away MP3s on MySpace. And let’s not forget that e-book prices are often much lower than their hardcopy counterparts to begin with.
Then it will only be a matter of time until some publishing industry equivalent of Michael Robertson (the music industry’s digital provocateur) will create a search engine for finding free e-books from all of these sources in a single convenient place, storing them in an online locker, sharing them with friends, etc.
If you extrapolate from these changes, you can see how public libraries could become virtually irrelevant for e-book readers.
It’s all because publishers get to decide what e-book titles libraries may lend and (to some extent) under what terms. Again, think of this in music terms: radio stations get the right to play whatever music they want under a license granted by law — a so-called statutory license. Online equivalents of radio (e.g., Pandora, iHeartRadio) get similar rights. Library lending of digital music is virtually nonexistent; radio remains the primary promotional channel for record companies. Perhaps it’s time to think more carefully about public libraries in this light for e-books, as I’ll explain.
There is no equivalent of a statutory license for e-books that would allow libraries to lend them without explicit, title-by-title permission from publishers. As I’ve discussed previously, libraries do get rights under Section 108 of the copyright law to lend e-books under certain conditions. But because most publishers only give libraries e-books to lend as DRM-protected files with license terms attached to them, and Section 108 requires libraries to abide by those license terms, libraries can’t exercise those rights. In effect, those rights have no value for libraries.
Libraries simply do not have enough leverage against major publishers and retailers to improve this situation in the private sector. If they are to remain relevant in the e-book age, they are going to need to push for significant legal reforms, which both publishers and retailers will undoubtedly resist.
I previously suggested one option, albeit in a somewhat tongue-in-cheek manner: push for the Copyright Office to define an exemption to the law that criminalizes hacking of DRMs (Section 1201 of the Copyright Act) so that public libraries can legally remove DRM for the purpose of lending e-books if they repackage them with DRM to enforce lending terms. However, this has two disadvantages: exemptions to Section 1201 only last for three years, until the Copyright Office considers a new set of exemptions, and publishers could push for stronger DRMs that are harder to hack.
The “cleanest” solution to this problem would be to enact Digital First Sale, i.e., an extension to Section 109 of the copyright law that lets anyone do whatever they want with digital downloads once they have acquired them legally. (We had a great discussion on this subject at last week’s conference.) Public libraries owe their existence to First Sale (on physical goods) in the first place. But that won’t help for e-books as long as publishers distribute them with DRM and DRM hacking is still illegal; and anyway, as I discussed recently, Digital First Sale isn’t likely to happen anytime soon. Therefore it would be worth libraries’ while to investigate changes to the law that help them lend e-books while leaving Digital First Sale off the table.
One option would be to push for additional rights for libraries under Section 108. At a minimum, Subsection (f)(4) would have to be relaxed so that libraries may lend e-books even if the licenses they come with forbid this activity. This would be tantamount to a statutory license for libraries to lend e-books without explicit permission from publishers.
As a practical matter, this wouldn’t really change the way things are done today. Libraries lend e-books through third parties like OverDrive, which already get e-books from publishers without DRM and package them with DRM — just like music and video retail services. And provisions already exist in Section 108 that hold libraries liable if they make their own unauthorized copies of e-books. OverDrive and its ilk use DRM to enforce one-copy-at-a time lending as well as the lending time limits that are in libraries’ own best interests.
This change in the law would improve the situation for libraries substantially. However, the economics may have to change to make it palatable to publishers. For example, libraries acquire e-books for their collections by paying for them title by title, just as they pay for printed books. Radio stations, on the other hand, typically get free copies of recordings from record labels but pay royalties to the music industry for playing them on the air.
If publishers acknowledge the promotional value of library e-book lending, then they might be willing to accept a statutory license to lend e-books if they can negotiate a per-loan royalty rate in lieu of upfront purchase prices. The Copyright Clearance Center, for example, would be in a good position to manage these payments and royalty disbursements, just as ASCAP, BMI, and SoundExchange do for music.
This type of arrangement would enable libraries to maintain huge collections of e-books (through service providers like OverDrive and BlueFire, which would actually house and distribute the e-books) and thus serve the public well. At the same time, the negotiations would have to resolve questions of how many copies of an e-book a given library could lend out concurrently; one copy per library doesn’t reflect the fact that big libraries acquire multiple copies of popular titles. Is it possible for the numbers to defined so as to be fair to both publishers and libraries? That would be a good question for the Section 108 Study Group, the venue for recommending changes to that section of the copyright law, which used to convene every five years but was disbanded by Congress after its last report in 2008.
A limited form of just such a statutory license-type solution has actually been suggested in the private sector already, in the proposed settlement to publishers’ and authors’ lawsuits against Google. It includes giving public libraries rights to make every book scanned on Google’s behalf — over 12 million titles at last count — available on a single terminal within each library. Libraries would not even have to pay for this. However, this doesn’t allow e-books to be available outside of libraries’ physical confines, it doesn’t allow libraries to acquire multiple copies of e-books they want to make available to more than one patron at a time, and Google can withhold up to 15% of its scanned titles at its discretion.
The Google book settlement is still unresolved, but the terms in it show that publishers may be willing to grant libraries some limited e-book lending rights. Libraries have complained about the “table crumbs” offered to them in the Google book settlement. But unless they take action similar to what I’ve described here, those rights may be the best that public libraries can hope for as the e-book market expands.
Bill Rosenblatt
Azita Arvani
Bill Jones
Niels Thorwirth
