In re books: Pure, undigested note-taking goodness

It took me a bit longer to get to this than I might have liked, but I did always intend to post my notes from In re books. It was a very interesting program, and I’ve seen a few more considered, polished pieces on it from other attendees (and the full webcasts of the panels are online also), but sometimes the rough notes can be useful to folks too (if for no other purpose than to orient oneself to what one might find in the webcasts)…And anyway, between dissertating, book-structuring, and preparing to teach next semester, it’s kind of all I have time for. One caveat: they’re definitely uneven, and that’s all on me – no reflection on the panelists. But maybe useful anyway. So, without further ado…enjoy!

Friday, October 26

Registration, Breakfast, and Welcome (8:30 – 9:00)

Panel One: In re Rightsholders (9:00 – 10:30)

Copyright ownership and licensing are perhaps more complicated today than at any other time in the history of publishing. This panel will discuss who holds what rights, how they are and aren’t licensed, how we got here, and what can be done to clean up the mess.

Topics:

  • Licensing under the Copyright Acts of 1909, 1976, and 2043
  • What contracts used to say about e-rights, and what they say now that we know better
  • Collecting societies: the cause of, and solution to, all of life’s problems
  • Can bibliographic metadata be owned, and if so, who owns it?
  • Free and open-“source” licensing for books

Panelists:

  • Eric Hellman, Unglue.it
  • Roy Kaufman, Copyright Clearance Center
  • Elizabeth Townsend-Gard, Tulane University
  • Eric Zohn, William Morris Endeavor
  • Robert Brauneis, George Washington University (moderator)

Roy Kaufman (CCC, formerly Wiley) – efforts to resolve copyright issues through collective licensing

  • Rights are very complicated, but can’t be ignored, and complications don’t mean lack of solutions
  • CCC = not-for-profit corporation, created at the suggestion of congress at the time of the 1976 copyright act
    • All based on individual sales of rights for specific uses of specific works
  • Solutions to these problems require rightsholders sitting down with users and figuring out what each side needs and how they can get there. Collective licensing seems like a good way to get there.
  • Trying to normalize the rights set, so that the system runs smoother as technologies change

Eric Zohn (William Morris) – shifting economics for authors in ebook sphere

  • Sometimes the black letter and the reality don’t match
  • Don’t even really negotiate royalties for print works anymore; but on ebooks, the royalty questions are wide open. Author’s Guild says authors should push for a 50% split (typical has been more like 20%).
  • Another question: does the 50% discount for re-sellers still make sense?
  • Different intermediaries for sale of ebooks vs. pbooks
  • Contracts haven’t been able to keep up with shifts in business
    • Some that are only 5 or 10 years old are already out of date
    • Definitions changing all the time
    • Example: reserved multimedia rights – tough to figure new media based on old contracts (including ebook rights)
    • What is “book form”? 20-30 years ago, no need to define, so didn’t. But what does it mean to have granted the right to publish “in book form”?
    • Similarly, what does “out of print” mean? What happens to contracts that say you get your rights back after the book goes out of print, in an era of print on demand?

Elizabeth Townsend-Gard (Tulane) – pinning down ownership of © so that ppl can be certain when using

  • Project to determine rights status of works
  • When does a work come into the public domain?
    • Has come to the conclusion that the law is knowable (wasn’t really sure)
    • Have gone through and coded copyright laws in every country, working on doing vertical analysis [EAJ: not sure what this means]
    • “The Durationator”
      • Tool for figuring out copyright status
      • Has been cited by Breyer in Golan v. Holder
      • University of Michigan has been a great recent partner
        • Durationator found twice as many PD works in sample set as UM did
  • Code alone doesn’t solve our problems – takes people too – “it’s humans plus code…plus humans”
  • Doesn’t work for orphan works, because that’s a problem in data – Durationator is great on the law, but it’s only as good as the data it has to work with.

Eric Hellman (Unglue.it) – crowdfunded ebooks released with CC licenses (Unglue.it)

  • Libraries work like a magic machine – take books, which are sold in bookstores, for money, and turn them, through the magic of lending, into a public good
    • These two models have existed alongside each other and enriched each other for a very long time – but that coexistence does not work so easily for ebooks
    • Missing: an effective way to bring © material into the public commons
    • Economic model of public radio and tv – big fixed costs, but no marginal cost to serve an additional user. So if it’s possible to raise a bunch of money through pledge drives, donations, federal grants, you can give the product away for free
    • Unglue.it attempts to apply the public radio model to ebooks.
    • Crowdfunding pledge drive for each book; let readers choose what to support
    • Example: Oral Literature in Africa – academic classic, pub by Oxford U Press, out of print, and not available as an ebook. Publisher asked for $7500 to allow it to come back into print. Ultimately successful. Then publisher gets 90 days to make the ebook file and place it into IA.
    • Got shut down by Amazon payments for a while (but that’s another story [EAJ: I want to hear it!])
    • Does not finance unwritten books
    • Has to be sure that the rightsholder really truly owns the rights to the book
    • CC licensing
      • Rights holder retains copyright
      • Format neutral, shiftable
      • Global
      • Anyone can redistribute
      • No DRM
      • Rights holder chooses license
      • “Copyright page from hell” – CC BY license image right above standard “All rights reserved” copyright statement! (Ultimate irony: the example page was from Open Access, by Peter Suber)
      • There is no right way to apply CC license to a work
        • How to prove conveyance? Just because you receive something with a CC license, doesn’t mean the © holder put it there; conversely, not much to restrain © holder from trying to retract the CC license
        • How do you deal with composite objects? E.g. book published with photographs, with no specification as to what electronic uses could be made. And what if the photographer wants a different CC license than the text author? Pretty much all ebooks are composite objects
        • Conclusions
          • We need help to make this work
          • Tech not the problem – “just the damn humans”

Q and A:

Bob Brauneis: RK and ETG are optimists about traditional rights frameworks, EZ and EH are pessimists

  • Hellman – A lot of this is just intractable
  • Townsend-Gard – It’s all hard, until you have the answer, and then it becomes super easy
  • Hellman (to ETG) – what’s the per-book cost? ETG: it’s a market failure; the university subsidizes
  • ETG – death dates are such a stupid way of doing things; pub dates are so much easier. The data is slowly getting better, but it’s still tough
  • RK – might need orphan works legislation, sees hope.

Grimmelmann – how do we make a good ecosystem for book metadata?

  • ETG – no idea! Really hard to do.
  • RK – Don’t think you can be in a copyright business these days without being partially in the metadata business.
  • EH – most important thing is alignment of interests.

Person from NYPL – are publishers ethically justified in not selling to libraries?

  • EZ – part of the old vs new problem. Partially the royalties issue. Publishers can’t handle giving the 50% royalty rate while also allowing lending. Sale vs. license is part of the problem. Physical books don’t stay in every library forever, so there’s a piece missing. Kills the backlist, also.

Janice (Pilsch?) from Rutgers – Would like to compliment the durationator. Also, a question that hasn’t been raised – limitations to rights, for education, disabled users, libraries, and more. How do those limitations fit in?

  • ETG – would love to include that
  • EH – one of the components of this ecosystem is Bookshare – created books for the print disabled, which they’re allowed to do b/c of that limitation to copyright law.

Jake Linford (FSU) – You’re the king or queen of the universe, how would you recraft these issues? And can you see any problems with your change?

  • RK – [missed]
  • ETG – Simplification. More things like the law on unpublished works, which is really simple. Most of copyright law is not simple, not elegant.
  • EH – Needs social practice in the community that’s good for everybody before changes in law.

Mike Schatzkin – What is needed is universal internet access. Doesn’t understand how one can own code. Can you ever sell ebooks? Can’t you only license it?

  • RK – yes, can only license
  • [missed a few other answers]

[Missed name] What about self-published rightsholders? Currently advising authors to withhold ebook rights, b/c royalties aren’t high enough. Need to be able to license rights to libraries too.

Bodo Balazs, Berkman Center – He studies black market in creative works. Piracy arises where markets fail. Why do markets fail? Because there’s not enough market innovations to bring texts to the market in formats, prices, etc. that people want. How to solve that? Need to enable innovation; let libraries lend ebooks; let intermediaries experiment with different models. On the shoulders of the rightsholders to solve. If it’s not solved, people have more than enough capacity to solve this ourselves [through piracy] – but that would kill off the whole industry.

[EZ says it’s just because people don’t think they should have to pay for digital works – Balazs strongly rebuts that assertion – pirate markets can and do self-regulate what they share out of a sense of responsibility to support creative ecosystems.]

Panel Two: In re Bookstores (11:00 – 12:30)

The business of bookselling used to be a quiet, patient, low-stress trade. Today’s bookstores are online, on-demand, monopolized, bankrupt, struggling to find new models, or all of the above.  This panel will discuss how law has, does, might, and should regulate the bookstores of tomorrow.

Topics:

  • Wholesale, agency, and contracts in restraint of trade
  • Who wins and who loses when bookstores go bankrupt
  • Legal support for new business models
  • Territorial sales in a borderless world

Panelists:

  • Niva Elkin-Koren, University of Haifa
  • Nico van Eijk, University of Amsterdam
  • Mark Patterson, Fordham University (moderator)
  • Christopher Sagers, Cleveland State University
  • Ariel Katz, University of Toronto

Niva Elkin-Koren

  • Unbundling the tasks performed by publishers – what will be their role in publishing new materials?
    • Tasks – producing manuscript, producing copies, risk management, gatekeeping, online marketing – increasingly come separately, not together.
    • Converging retailing and publishing – blurred distinction between publishing and sale
    • Converging access and content – control over content, access, users
    • Partnership with rights holders
    • Most important issue is civil liberties – should keep in mind that if we are moving into this world of complete control, where e-readers can restrict use, surveil their readers, etc.
    • What is the best legal framework? Antitrust law is limited; Copyright law maybe? (cites GSU case, AGvHT)

Nico van Eijk (European perspectives)

- [Computer problems]

Christopher Sagers

  • Antitrust law
  • Was the ebooks agency pricing case a good case? (what he was asked to talk about; also wants to get at some deeper issues)
  • Antitrust = an ironic policy
  • “the agency model – we used to just call it vertical price fixing” – and thus automatically illegal

Ariel Katz

  • Bobbs-Merrill case! (1908) – disallowed price controls on subsequent sales – a win for Macy’s, which had been selling a book for lower than Bobbs-Merrill’s preferred price
    • There was also an antitrust argument in that case
    • Not a vertical story – a broadly horizontal one
    • Macy’s – retail innovator – not unlike Amazon in trying to be a one-stop cheap shop
    • Publishers make a deal to only sell to resellers who agree to sell at sticker price, at least for the first year. Booksellers agree to boycott any publishers that don’t go along with that deal. Macy’s didn’t like that, and decided to fight back.
    • Bobbs-Merrill case emerged out of Macy’s not wanting to go along with this, and claiming both a copyright and an antitrust argument in defending its practices

Panel Three: In re Libraries (1:30 – 3:00)

Some observers think libraries are obsolete. Others think the time is ripe to build a new Library of Alexandria. This panel will consider libraries’ missions in light of the digital transition and ask what the legal system can do to give society the libraries it needs.

Topics:

  • The Devil Went Down to Georgia State: the law of e-reserves
  • What should a Digital Public Library of America look like?
  • Research, public service, and the struggles over libraries’ missions in an age of shrinking budgets
  • Is there any hope of agreement on revising Section 108’s library exceptions?
  • Electronic lending by libraries: threat, menace, or inevitabiity?

Panelists:

  • Jonathan Band, Policy Bandwidth
  • Caleb Crain, Author
  • Doron Weber, Alfred P. Sloan Foundation
  • Jessamyn West, Librarian.net
  • June Besek, Columbia Law School (moderator)

Doron Weber (Sloan) – talking about DPLA

  • Universal access to knowledge
  • No single access/coherent access to all these individual infrastructures
  • Brought together about 40 ppl who had been working toward broad online access, made them all co-edit a sentence
  • Secretariat at the Berkman Center, led by John Palfrey
  • Steering committee – Harvard, Michigan, Stanford, LOC, BPL, SFPL, Pratt, etc.
  • Still a lot of issues to work out
  • “DPLA is a movement, more than a product, at this point”
  • There was a worry that this would be competing with public libraries for funding; however, a large pct of the participants are public libraries
  • Want a linked data environment w/connections all over the world

Caleb Crain

  • Here to play the role of luddite
  • How digitization can slow/harm research
  • Started thinking about this when he found he opposed the NYPL’s plan to move a bunch of its collections into offsite storage
  • Slow monkey analogy – footnote tracing = like a monkey swinging from limb to limb – can generally see the next one, but not the one after that. NYPL plan would limit scholars to a limb every 2-3 days. That’s a slow monkey.
  • Digital proxies are wonderful as supplements – finding particular passages, searching old newspapers, etc.
  • E-book permanence is unproven – how will they survive a power outage brought by war? How will they persist as file formats change? “A library full of self-erasing books is a researcher’s nightmare.”
  • Metadata and quality problems in HT (e.g. missing volumes), stability issues in IA
  • For careful reading, more useful to be able to flip back and forth (to map, to endnotes, to prior chapters)
  • Potential unintended consequence: NYPL prioritizes shipping already-digitized books offsite; however, important works have been digitized first, and so are at risk to get shipped offsite first, or even deaccessioned
  • Nicholson Baker’s lament about the death of the card catalogue – NYPL’s online catalogue doesn’t actually include the entire collection – especially for multivolume series, things like GBS, HT, OL, etc. just don’t do it well
  • Weeding – computers can tell when a library book has been checked out, with little room for error – easy to tell whether the book is earning its shelf space or not, hard to subvert

Jonathan Band

  • Libraries want the ability to make novel uses of the things they have purchased and preserved
  • UCLA, GSU, HT cases – “Libraries under siege” – very troubling to the libraries
    • A year later, we’ve pretty much won all those cases – no longer feel under siege
    • UCLA – judge dismissed the complaint b/c the use had been licensed, and copies had to be made to facilitate the licensed activity
    • GSU – 350-page decision, to do with electronic reserves – virtually all of the uses were found to be fair use
    • HT – preservation activities, provision of access for the print disabled = fair use/allowed
    • Very significant issues still remain, though – e.g. Kirtsaeng case (first sale for copies made overseas); digital first sale; will be very important for libraries to deal with in the future.

Jessamyn West

  • Libraries as the de facto social safety net for access to digital technologies in an era where they’re increasingly essential parts of life
  • Interesting historical analogy – Rural Electrification Project – running the wires out to everyone’s home. Last one in Vermont got hooked up in 1962. These things take a long time!
  • Simultaneously, there’s a new tech every minute and also there are lots of people who still don’t have access to three technologies back
  • Need to understand the challenges in making digital library resources really useful to THE PUBLIC
    • Twitter can have lousy customer service, because they don’t care about losing your business. Digital public library can’t do that, because they need to serve everyone
    • 20% of US adults still have no internet access
    • 60-70% adoption of…I missed what…among the more digital generation (25-44)
    • Less adoption among the poor, the illiterate, immigrants, etc.
    • Fear is a big reason for not wanting to use internet
    • Lack of interest is another
    • Three divides:
      • Economic
      • Usability
      • Empowerment – those things are for other people, not me
      • Gates foundation went around giving computers like Carnegie gave buildings – and now they all have PCs, whether that’s the platform they wanted or not. (Program background, motivations, definitions matter!)
      • When people think about the library being online, they think of it as a store – and that’s a problem.
      • How do you explain digital rights management to someone who doesn’t know what an ebook is? How do you explain what an ebook is to someone who doesn’t know what a digital file is?
      • Some folks who are doing stuff right: Flickr Commons, Cornell (taking restrictions off PD stuff), Owners’ rights initiative
      • William Gibson quote: “The future is here, it’s just not evenly distributed”

June Besek – thinks Doron Weber and Jonathan Band are optimistic; Jessamyn West optimistic with caveats; Caleb Crain pessimistic, generally

Panel Four: In re Readers(3:30 – 5:00)

Electronic reading has been described in terms of unlimited abundance and in terms of total control. Which of these views is utopian and which is dystopian depends on your point of view.  Perhaps somewhere in between lies a healthy middle ground.  This panel will discuss readers’ rights and responsibilities in the age of digital books.

Topics:

  • Keeping 1984 from disappearing down the memory hole
  • How will disadvantaged communities plug into books?
  • Does first sale make sense for files?
  • What to do when your book is reading you
  • Digital texts and accessibility to the blind and print-disabled

Panelists:

  • Daniel Goldstein, Brown Goldstein Levy
  • Valerie Small Navarro, ACLU of California
  • Lateef Mtima, Howard University
  • Aaron Perzanowski, Wayne State University
  • Molly Land, New York Law School (moderator)

Lateef Mtima (Howard)

  • “subversives…I mean readers”
  • Social utility – trying to get more out of books for society as a whole – really the whole purpose of copyright law
  • Something that got lost in the last century, but came back b/c of digital technology = copyright social justice. Need to remember copyright’s functions of inclusion, development, and empowerment.
  • Digital tech produces “Second Gutenberg moment” – new means of books being fixed, and distributed, and transferred, and shared, and we need to figure out how to get the most social utility out of that.
  • Challenge is to think about how we get © law to do what it was doing before (making this new thing called the printed book do good things for society)

Aaron Perzanowski (Wayne State)

  • Ownership acts as a check against overreaching – like wiping someone’s Kindle for some violation that Amazon won’t specify
  • There’s a common law understanding of exhaustion in copyright law – copyright act doesn’t foreclose common law development of exhaustion rules.

Daniel F. Goldstein (Brown Goldstein Levy)

  • Advocate for the blind
  • “secret history of ebooks and accessibility”
  • Digital content is not inherently visual, tactile, or audible – but it can be delivered to any of those senses
  • Kindle initially didn’t enable text-to-speech (and/or waffled back and forth on it)

Valerie Small Navarro (ACLU)

  • What we read says a lot about us
  • Readers should know what information is being collected about them, how it is tracked, and with whom it is being shared
  • Reader privacy act, CA
  • Limits to the tracking of the information – must be able to read or browse anonymously – tracking browsing should cause us some concern
  • When are browsing habits destroyed?
  • Real center – reader control. Whose information is it?

Saturday, October 27

Panel Five: In re Backlist (9:00 – 10:30)

Printed books have existed for more than five centuries.  Bringing this immense backlist into digital form presents both challenges and opportunities.  This panel will discuss the twinned problems of orphan works and mass digitization.

Topics:

  • The causes of and extent of the orphan works problem
  • The Google Books project and litigation
  • The future of physical and electronic archiving
  • Are the “digital humanities” an oxymoron?
  • Orphan works reforms, legitimate and otherwise

Panelists:

  • Jake Linford, Florida State University (moderator)
  • Aurélia Rostaing, French National Library
  • Matthew Sag, Loyola University Chicago
  • Pamela Samuelson, University of California at Berkeley
  • Jule Sigall, Microsoft

Aurélia Rostaing – “Zombie Armies All Around”

  • Notice of inquiry on Orphan Works recently
  • Drawbacks in EU orphan works directive:
    • libraries and other cultural institutions will probably have to pay twice – first to conduct the search, and then, possibly, if a rights holder emerges
    • Won’t apply universally, certain countries have other laws, also last year’s memorandum of understanding on “out of commerce” books
    • Proposal – put potential OW’s up on a list, after a certain time, if no rightsholder has come forward, rights transfer to a collective management organization, who then goes to the original publisher and asks if they want to republish it, and if they do, they get the exclusive rights back for 10 years, likely renewable (though that is tacit).
    • In France, according to the IP code, when a book is out of commerce, the rights return to the author. The author has to do a few things, but that’s generally the rule.
      • There have been negotiations in France on digital rights, but those negotiations have been stuck for the last year and a half.
      • There has been a settlement between publishers and Google in France like in US, but it’s also secret
      • Hopes that US libraries will be able to scan and provide access to Orphan books because of fair use, that it won’t remain chained to a licensing bundle like it seems to be headed toward in France

Matthew Sag – compulsory licenses and orphan books

  • Can’t read all the books in the world – but computational analysis can be a cool adjunct for the digital humanities – for example, Google n-grams
  • Given that these kinds of large-scale computational analysis is now legal (we hope), there is still an orphan works problem
  • Universities have put their orphan works programs on hold
  • Concerns about orphan works reform via the copyright office:
    • Case law has unblocked some of the most significant orphan works issues (ADA, non-expressive use, search)
      • Would be a shame if proposed “solutions” made backward steps
  • Use of copyright works without permission is not malum in se (bad in itself)
    • “Solutions” that merely taxes reading without getting funds back to authors are pointless, and should be resisted.
  • Collective licensing and compulsory licensing are hard to get right, and can go horribly wrong.
  • Compulsory licensing
    • Has worked really badly for webcasting/streaming.
    • Three questions:
      • Who receives compensation?
        • Author or publisher?
          • Rough and ready division as in the GBS ASA?
          • Arbitration system to quickly settle issues? (Sag likes this idea, not sure authors will)
        • For what uses?
          • Should we roll back current fair uses?
          • Should we raise a levy on things that might be fair use?
          • Should we limit to things hard to justify under fair use?
        • At what price or under what price-setting mechanism?
          • Congress is not going to have the guts to set costs
            • Magic 8-ball, er, arbitration?
            • If you propose a complex arbitration proceeding as in Webcasting, you need a decision standard.
              • If you set the cost too high, it’s hard to fix; set too low is easier to fix.
              • If public interest is not in this standard, then it is a faulty standard.
              • Adversarial rate-setting process?
              • “Agree or arbitrate” framework would be even worse in orphan books than in webcasting
  • Broader concern – creating a negative collective-licensing monoculture, where there should be a diversity of arrangements based on rightsholders’ preferences and initiative.

Pamela Samuelson

  • What’s changed regarding orphan works since 2006?
    • One big one is mass digitization – it’s normal now. There’s an opportunity to bring some of the issues it raises to the registrar’s attention
    • Office has been taking some efforts itself – including digitization of its own records regarding registrations, etc. – but it’s still not searchable in the way that many might like
    • Some are looking to update the registration info system, to help improve information about what’s an orphan and what’s not
    • Loss of cultural heritage is a real worry, esp in a world where students won’t go to the physical library anymore.
    • Reference to presentation at Orphan Works symposium about SNCC documents – they’re now working with Berkeley to improve their situation
    • Have been a number of studies, esp. at British library about how many things might be orphan works
    • And of course, fair use case law has changed too. Beyond Kelly, Perfect 10, now we have GSU, AGvHT
    • SAA orphan works best practices statement – two flowcharts, describing diligent search for living vs. deceased authors
    • PS “caught the vision” despite opposing the GBS settlement, wants to find a way to get there in another way. Doesn’t like the idea of collective licensing either, but thinks we kind of have to consider it as an option.

Jule Sigall

  • Brief history of orphan works
  • Epochs:
    • 2005-2008 – age of legislation – but that legislation didn’t pass
    • 2008-2011 – age of class action – but the settlement failed
      • Inside the GBS settlement was something that could have been beneficial, with regard to orphan works, but the fatal flaw was the different treatment of Google and its partners vs. everyone else in the world
      • Other problem – the class actions stopped all the legislative activity
      • Shined light on fitting mass digitization into the legislative frameworks previously proposed (e.g. diligent search framework)
  • 2011-present – age of litigation
    • divergence between US and Europe here – Europe turns toward legislation in this period; US turns toward litigation
    • GSU, HT, GBS cases
    • Choices
      • Diligent search or formalism – that is, research or registries. Is the burden on the user to figure it out? Or should there be registries organized centrally?
      • All users or some users – restricting it to only certain groups (e.g. cultural institutions) can be comforting to rights holders – but at what cost to reuse, and incentivizing reuse? Sigall feels that we should not prejudge who should be able to use.
      • All works or some works
      • All uses or some uses
      • Remedies or exceptions or licensing
      • Legislation or Litigation or Voluntary – keep in mind, fair use is a litigation strategy
      • Public or Private – to Sigall, main lesson of GBS settlement – important that overall solution be oriented toward the public interest – mission of libraries for centuries

Q&A

Jonathan Band: Represented library associations through “epic of legislation” just discussed, also “epic of class action” – one thing that became clear during these periods was that the real problem was the gatekeeper problem – general counsel’s office saying “you can’t do this” even though libraries were pretty sure uses were fair uses. Big change, is that we seem to be past the gatekeeper problem thanks to these decisions, ARL best practices, legislation in Europe – generally, recognition of the problem, which leads to more comfort among general counsels. Not that there aren’t still issues, and variation in comfort levels, but it’s led to more activity in libraries, etc.

  • Sigall – legislative solutions proposed went beyond fair use; limitations on remedies approach leaves way open for a fair use determination separately.
  • Samuelson – thinks different institutions had different kinds of gatekeeper issues. OW problem is much broader than these kinds of institutions. Just because libraries are comfier doesn’t mean there aren’t problems elsewhere. Fair use takes care of the problem for libraries, educational institutions, but other folks might need other solutions

Caleb Crain: Could fair use be used to solve the OW problem more generally? Thought he heard Matthew say that, wonders how that might work.

  • Sag – There is an argument that if a book is out of commerce, and you make a socially useful use of it (one of those “good” ones under fair use), fair use is likely to be helpful there. So it doesn’t solve the problem, but it helps.
  • Samuelson – One thing she likes about OW report from 2006, that’s missing from EU directive is the ability to make a derivative work, and then, if you had a good faith belief that there was no rights holder, but then they later showed up, you could continue making that use, but you might have to pay for it.

Jessica Litman: Attention to the possibility of law reform…the way copyright laws get passed in Washington is for interest holders to get together and decide on something they can live with, and then pass it on to congress. Lesson of attempts at legislation and settlement, is problem of not being able to find anyone to represent the interest of authors of orphan works. Those who have volunteered tend to have other interests in mind. So how do we get such a proxy present at the table?

  • Sigall – seems like a logical contradiction – sort of an un-representable group. Should be part of the role of congress.

Peter Hirtle: Following up on point about gatekeepers. Jessamyn noted yesterday the IA program to loan in-copyright books to individuals, and they haven’t been sued yet. Maybe we’ve solved the issue for libraries, but need to think about how Google might be allowed to sell orphan works.

  • Sag – would have to be careful about not placing a tax on the public domain, since many orphan works actually are in the public domain
  • Samuelson – they probably do have that right under the settlement with the publishers. Still, there are some issues about exhaustion of rights for ebooks, which have yet to be resolved.
  • Sigall – would surprise him if the settlement addressed works not owned by those publishers. At least, he would hope it didn’t. But we can’t tell because it’s secret.

James Grimmelmann: Wants to suggest a twist on the frame used to talk about orphan works – in a sense, thanks to modern treatment of copyright, and every transfer or reproduction is making use of some exception or rule of the copyright statute. But most creators don’t care about those transfers. So those authors who do care are actually the exception. There’s a divide about what world these works are in – are they in the commercial exploitation space, or are they in a more casual or communicative space?

  • Samuelson – seems to her that what we will find if there is ever litigation over the casual work fair use argument, is that the second factor in the fair use assessment (nature of the work) will turn out to be an important factor. Jennifer Urban explores that aspect as an element of her piece on fair use as a solution to the OW problem. Also: there is, on the international scale, an interest in re-formalizing copyright. PS is having a conference next April about re-formalizing copyright. Would be especially awesome because casual works could then fall out of the copyright system.
  • Sag – if we address this on the remedies end, this sorts itself out. We create a “no harm no foul” rule.
  • Sigall – potentially very helpful way to look at the issue. Tends to push toward registries over research. At the scale on which the Internet operates, that might be the only efficient way to handle the issue.

Minda Zetlin – American Society of Journalists and Authors – nervous about addressing this hostile audience! – believes there is a definite distinction between authors and publishers, who purport to be representing authors. Seems clear to many authors that publishers do not have electronic rights to their entire backlists. A lot of people have talked about the creation of registries, but there actually is one – the author’s rights registry, created by freelance writers, to help manage rights for digital use. Wouldn’t living/findable authors be good advocates for un-findable ones?

  • Samuelson – actually, she’d be a better advocate for authors like her – academic authors whose interest is much more in being read than in being sold
  • Sigall – important to make the internet into an opportunity rather than a threat.
  • Zetlin response – her organization objected to the Google-AG settlement; doesn’t think it’s in the interest of authors or anyone else for orphan works to not be available. The question is how.

Panel Six: In re Everything (11:00 – 1:00)

This panel steps back from the details to take a longer view of the history and future of books and law.  Participants will talk about long-term trends in publishing, culture, law, and technology, with an eye towards ensuring a harmonious future for them all.

Topics:

  • The storied past and uncertain future of print
  • Piracy over the centuries: hbas anything really changed?
  • The broken political economy of copyright
  • The publishing industry as it has been and still might become
  • Why books?

Panelists:

  • James Gleick, Author
  • Stanley N. Katz, Princeton University
  • Jessica Litman, University of Michigan
  • Stuart M. Shieber, Harvard University
  • John Thompson, University of Cambridge

John Thompson

  • Talking about trade publishing, sociologist’s view
  • Logic of the field
    • Developments:
      • Growth of retail chains (starting in 1960s, continuing through 1980s-90s) – three consequences
        • Devastated small indie bookstores
        • Dramatic shift in way books were stocked and sold – principles from other sectors started to be applied to books
        • Hardback revolution – by applying mass marketing techniques to sale of books, they could greatly increase the number of hardcover books they were able to sell. 60s and 70s, paperback was foundation of trade publishing; 80s and 90s, that became the hardback
        • Rise of literary agents
          • Rarely-told story, specific to anglo-american trade publishing. Agents have a lot of power here, relative to their power elsewhere.
        • Emergence of publishing corporations
  • Consequences of these developments:
    • Polarization of the field of publishing – a few very large, very powerful players, and a ton of very small players, and nothing in the middle. Middle can’t take advantage of scale economies, can’t participate in the economy of favors that exists among small indie presses (e.g. lower rates from freelancers).
    • Preoccupation with big books – publishers have to grow by 8-10% every year, but the market is largely static in developed markets like US and UK; publishing more books doesn’t help. Focus on big books does. Cuts out mid-list titles. Big books are not bestsellers, but rather HOPED FOR bestsellers – they exist in the realm of the possible. Books that could be big. Buzz is what happens when the recipients of hype respond favorably, and backed up by money.
    • Extreme publishing
    • Shrinking windows – 6 weeks for a book to start to sell, and if it does, the publishers start to back it hard. Otherwise, they’re pulled back really fast.
    • High returns – historically high, around 30%. But for some sectors, it’s higher, could be up to 60-70%, many of which just get pulped. Lots of waste built into the system.
    • Squeeze on publishers’ margins
      • Agents on one side, controlling access to authors (and escalating advances), and retailers on the other side, controlling access to customers (and escalating discounts).
      • Ebook sales have exploded as a % of US trade publishers’ total revenues – from almost nothing in 2006 to 20% in 2011
        • In the mid-2000s, prediction was that businessmen would drive ebook adoption – but it turned out to be genre fiction, like romance. Also, to a certain extent, literary fiction.
        • Looking to the future:
          • Amazon up, bricks and mortar booksellers down
          • Pressures on vulnerable publishers will grow, leading to further consolidation
          • Struggle for visibility will intensify and shift increasingly online.
          • Shift from print to digital will continue, though speed and extent will vary from one category of books to another
          • Publishers will face growing pressure in terms of price deflation
          • Large publishing houses will face downward pressure on top-line revenue, leading to growing emphasis on cost reduction to maintain profitability
          • Traditional book supply chain will come under increasing pressure
          • Smaller publishers will proliferate, with disintermediation of publishing services

James Gleick

  • Robert Brown, in the 1930s – books are archaic word-containers, machines should do the reading
  • McLuhan – hope in the digital computer – instant translation of any code or language into any other – why not eventually bypass language in favor of a “cosmic consciousness”
  • Of course, death of the book is often predicted in book form. And by book form, doesn’t mean physical books, but does mean something different from blogs and tweets. Long form.
  • JG loves the feeling of dead tree books; admits that it’s nostalgic. Also loves bookstores.
  • The past does not automatically transform itself into the future – a lot of things hang around vestigially (e.g. books being “out of commerce” is a dead-tree idea)
  • “Book utopia” – piece of it for him is that people pay for books and authors get paid
  • Libraries have historically provided free access at the cost of some inconvenience – doesn’t think more is necessarily better. JG feels that though the ideal digital library might be free, just as the ideal restaurant might be free, neither would be sustainable.
  • Academics occupy a privileged niche in the ecosystem of books – better access to work of others through library’s subscriptions, and our work is meant to be subsidized. But other kinds of authors do not have such subsidies – they rely on sales.

Jessica Litman

  • An unfortunate piece of the polarization over copyright is that calls for reform tend to get recast as calls for all works to be available for free – but that’s not what the arguments really are.
  • The system is not very good at paying authors, as it is now.
  • Amazon said, the only essential people in the relationship between authors and readers are authors and readers.
  • College/Law school textbooks cost a ton of money – too much money. So much that students won’t buy them, and students don’t read the assigned textbook. And that’s not what the textbook writer wants either.
  • Increasing turn toward different models for scholarly publishing. Gives several examples, including incorporation of UM Press into UM Library.
  • Example of writer who started her own publishing company, no longer signing over rights she doesn’t want to sign over in order to make less money than she’s making on her own.
  • Seems like publishers are treating readers and authors in a way that seems expedient in the short term, but seems likely to write them out of the story in the long term.
  • Several folks have talked about the importance of protecting the rights of readers. JL wants to be more ambitious. Important to value privacy, autonomy, etc, but also copyright should incorporate zones of safety for readers to be able to read in the way they want to read. Still not talking about getting books without paying for them. If you have legally obtained a book (whether that means buying, licensing, borrowing, receiving as a gift…), your rights should include the right to enjoy it the way you want to.

Stuart Shieber

  • Kindle has a bunch of problems in functionality – but there’s a difference between contingent and intrinsic problems, and most of these are contingent problems (not intrinsic to ebooks in general)
  • Some issues with ebooks – contrast btw text and bkgrd, availability of titles…missed a bunch
  • Functionalities of books can be split into functionalities of ebook readers (physical, reading, navigation, markup, accessibility) and functionalities of ebooks themselves (business/legal, preservation, ineffables like pride of ownership, display, etc.)
  • Prediction: ebook readers will be preferable to books, but books will still be preferable to ebooks.

Q&A

Jake Linford: Transferability of format? Simultaneously sensible and nonsensical. Where do we draw the line? Ability to commercialize the next iteration sometimes is what gets us the next technology.

  • Litman – doesn’t worry about that. If books can’t be transferred to the next device, that’s going to damage sales of the next device. But if we take seriously that part of copyright is to encourage people to read books in addition to writing them, then transferability makes a good deal of policy sense. That’s why you back up your hard drive. Nothing in © really protects those backups, but it just makes sense.

Noel Robinson (student at NYLS) – Genres that took off in ebooks – why those? Is there something about the medium? Is there something about the culture that’s more entertainment-driven that’s increasing e-reader adoption? Which is driving which?

  • JT – these are genres of immersive narrative reading, where they read it all the way through, relatively quickly, and don’t necessarily care about keeping it. Reference works don’t work as well for e-readers. Would be a mistake to look at book publishing as some kind of uniform domain – it’s very diverse.

Jule Sigall – Jessica said she’s surprised book publishers haven’t chosen to align with readers or authors. O’Reilly has suggested that publishers should become platform builders. Q for John – why haven’t we seen publishers go toward becoming platforms, and will we see it going forward?

  • JT – yes, we’ll definitely see that. Risk of losing authors to Amazon or other similar companies, so working on building relations with authors in a different way.

[And then: Exeunt, pursued by a hurricane.]

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