Exploring Lessig's Copyright Critiques

Since writing about the Google Settlement, Lawrence Lessig has taken aim at much bigger problems. But I’d like to focus this post on the copyright arguments.

Lessig’s article in The New Republic gives a useful explanation of the google book settlement, and also lays out some principle arguments against the copyright system. It’s an interesting read, although lengthy.

Lessig’s broadest point is that Google’s plan - to scan 18 million books is a Fair Use. There isn’t much debate that Google can scan without permission books in the public domain — 16% of the total. There also isn’t a lot of debate that Google should get permission to scan the 9% still in print. The issue focuses on the 75% of books no longer commercially available, but not yet in the public domain. Most of these books are orphans: their rights-holders are unknown; the person who could grant a license is not known. Lessig believes that Google’s plan to scan orphaned books without permission, index these scans to a search function, and provide at least snippets of these books is Fair Use. But Google, although making the Fair Use argument, feared judicial disagreement and the subsequent liability, and instead consented to a class action settlement. Lessig is angry Google will not be establishing the Fair Use precedent, but is instead using its unique financial resource to buy the right to build its digital repository. The settlement creates a precedent to license even transformative use, and entrenches the copyRight system as a model for the future.

After explaining that his motive against the settlement is not actually the settlement itself but instead the copyright system (a system which is however emboldened by Google’s settlement), Lessig proceeds through a passionate argument-peppered essay, which I think reduces to essentially four critiques against the copyright system:


1) The metric of control — regulating copies — is overly crude in a digital world.
Through libraries and used stores, most hard copy books are easily and cheaply accessible. No copy is created and no public performance is engaged in when you check out a book from the library or buy a used book, and so the copyright laws do not restrict access. One of many positive consequences of cheap and accessible books is that we have vast cultural reserves where our children can learn, connect, and form new ideas.

Now fast-forward 10 years. The iPad long ago digitalized reading. Demand for hard copy books plummeted, the publishing business is dying (much the like corporate music industry currently is), and public libraries are closing. But digital libraries can’t replace them because, even though the same concept, digital libraries have to create copies for patrons to check out books, and the copyright laws prevent this (or at least limit it to only those transactions for which licensing is profitable).

“We are about to change that past, radically. And the premise for that change is an accidental feature of the architecture of copyright law: that it regulates copies. In the physical world, this architecture means that the law regulates a small set of the possible uses of a copyrighted work. In the digital world, this architecture means that the law regulates everything.”

Lessig doesn’t offer any clear suggestion for an alternative metering device.


2) The level of control granted under the digital copyright system is too fine.
“The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed.” “In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs).”

Lessig’s argument is a bit mysterious. Clearly traditional publishers did and do regulate access smaller than the entire album or book. Copying one song (or even 3 notes of one song) on an album can be infringement. Moreover, and ironically, iTunes revolutionized music sales by selling songs a la carte, but this change in the level of control was popularly demand and destructive to the incumbent industry.

Lessig is concerned about digital libraries with incomplete books or incomplete access, the inevitable result, perhaps, of value-licensing with no floor on the level of control of a work. Lessig tells of an experience he had researching and diagnosing his gravely ill daughter using an online book, and being denied access to the treatment because the rights-holder withheld that section — an anecdote so perfectly on point and touching that one suspects in might be a professor’s hypo.

This incompleteness, at least as to the Settlement, may exist where the rights within a book are not owed by the same person, eg, where an illustrator or chart designer owns some of the content, or where a book originally licensed the inclusion of content for a limited period (the problem with documentaries).

Again, Lessig is without a clear solution.. Perhaps he would prefer that book rights not be divisible? Even the existence of a one-shop license clearinghouse wouldn’t prevent incompletely licensed books, without the existence of a compulsory licensing scheme.


3) The system does not leave enough breathing space for socially desirable conduct.
Lessig’s essay begins with another anecdote about the daughter of a famous film documentarian, and the almost insurmountable task she faces in clearing the licenses for her father’s works. Although this person has the tenacity and money, others don’t and documentaries literally rot because the right to show or reproduce has expired.

Preservation is also the focus of Sergey Brin’s (of Google) NYT op-ed, in which he discusses frailty of books and libraries, given the floods, fires, and other natural disasters libraries to which are prone.

Copying just for the purpose of preservation is probably not fair use.

Even more legitimate fair uses like education and social commentary are stifled because of uncertainty about the law and fear of crushing liability. In RIP: A Remix Manifesto, Lessig advices the director that his film is probably a fair use, but that he should still worry about losing a suit. Most people are not as daring as Brett Gaylor or Girl Talk, and fair use expression is self-censored for fear of suit.


4) The lack of central clearing house or titling system makes a substantial number of works impossible to create or inaccessible.
Google can’t license orphaned books because it can’t find the owners. The costs of actually searching for each of these owners to obtain licenses (a search which would be futile in many cases) have been estimated Google's lawyers at over $24 billion. Gaylor and Girl Talk wouldn’t create their works if they had to license all their material — it would take too long, it would be too expensive, and some of the rights holders might simply refuse. The documentarian’s daughter in Lessig’s piece has spent 8 years licensing her father’s works, and she’s not even done yet. Most documentaries cannot be restored or even publically shown because re-licensing them is too costly and laborious.

Here, Lessig has a clear suggestion: “A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. Thus, for example, five years after a work is published, a domestic copyright owner should be required to maintain her copyright by registering the work. Failure to register would mean that the work would pass into the public domain. Successful registration would mean a simple way to identify who owned what.”