Judge Chin gave his verdict, and the GBS lost.

The GBS Amended Settlement Agreement has been rejected, and it feels weirdly anti-climactic. The Judge – no fool he – limited the scope of his judgment, restricting himself to the aspects which were absolutely necessary to making a decision. Specifically, he said that the attempt by the parties to grant Google a licence for future use based on a case which was supposed to be about past infringements was a greater stretch than the law allowed. On other issues, he was broadly with the objectors – privacy was an issue, copyright too, and so on – but stopped short of making definitive statements which could readily be used as precedents in other cases. It was, as far as I can see with my untrained eye, a conservative, solid, sensible bit of work. Unlike the settlement itself, it stayed within the exact bounds of what was required.

Perhaps because in the UK we’re used to government inquiries and suchlike being heralded with great fanfares and speculation and this judgment was just there from one moment to the next (or maybe I missed the build-up because I don’t follow the New York legal scene closely), it feels rather sudden. After months of worry, it comes down to this, and we won. Huh. Okay. Cool. But what happens now?

Well, there may be ongoing litigation. The National Writers Union statement (Seriously, guys: no apostrophe? Are we grammar pedants or are we not? :) in the US certainly seems to suggest that there will. I can see the argument: Google’s digitisation of copyright works could be seen as an infringement in and of itself, and never mind the whole ‘snippets’/Fair Use argument. And another question: if Google is scanning books in order to create better natural language search software for commercial purposes, should that software be considered a derivative work? (No, probably – but courts have made more unlikely decisions.) Clarity would be good for everyone. I just can’t really muster much enthusiasm for it: my beef was with the GBS quite specifically, for the reasons I’ve given in the past.

However…

I do have some concerns specifically related to the UK. British governments tend to hammer the creative industries when they want to make the point that they’re being frightfully tough on frivolous spending. Gordon Brown’s administration partway-massacred the UK film landscape in 2004 on the basis that those pill-popping monsters in Soho House were evading their tax responsibilities. The Film Council was one of the first victims of the Coalition’s axe. Authors’ averaging tax relief is in the Office for Tax Simplification’s sights – despite George Osborne’s assertion in the budget yesterday that a March of the Makers will save the British economy – and so on and on and on. Government does not like wafty creative types, and particularly does not want to acknowledge that without them, enormous segments of the British economy grind to a halt. It’s much easier to make breaks for ‘enterprise’ than ‘creativity’ – or rather, it’s more politically rewarding to talk about breaks for companies and the notional generation of jobs than about the bedrock of publishing, film, television, advertising, software, and music: creative people.

All of which is preamble to my present worry: the Hargreaves Review. Set up by David Cameron, the purpose of the review is essentially to see what can be done to make the IP framework more friendly to companies like Google. Cameron loves Google. In and of itself, I have no problem with that. I’d much rather he loved Google than British American Tobacco. But restyling the IP landscape to suit Google should please no one. One of the great promises of the internet was the broadening of access to distribution for creative work: the rise of a new meritocratic system where books, music, movies and so on could be made in garages and put online, creating a profitstream which would support artisan creators. A world where big media was increasingly playing catch-up, and raw human endeavour – content – was king. Instead of my going to a big publisher, I’d outsource editing to a freelancer, do the same with publicity and marketing, and take a much larger share of the profits from my work.

It’s an incredibly attractive notion to many. But it hinges – much as many are loathe to admit it – on robust IP law. If you create, say, an amazing short movie and put it on your site free of charge, you are looking for one of two things: massive traffic, so that you can sell ad space, or a contract to make a long-form movie. (You may, if you have Cory Doctorow‘s golden touch, be able to persuade people to buy a download of the movie. Cory’s amazing ability form a rock-solid relationship with his enormous readership, a relationship which feels personal and carries a sense of obligation and collegial respect, is not something anyone I know of has yet duplicated. It’s a tribute to the man, not the model. At the risk of stating the blindingly obvious, not everyone is Cory Doctorow.) If Google or another site can simply lift your film and place it on their own site, they will get the ad revenue you might otherwise have seen. If the movie industry is feeling tight because their profit margin is down because the law now allows filesharing, your chances of getting a deal to make your movie are reduced. (Yes, the movie industry is grossly overpaid and flabby. That changes nothing.)

The point is that while it’s possible to open IP up to make life easier for new services, it has to be done with incredible discretion and caution to avoid simply handing the content industry to a new set of large corporate masters who are not even vested in the notion that content is their primary revenue stream. And how does that profit creators? Not at all.In fact, it just puts us in hock to a culture with a history of refusing to negotiate with artists. Google has recently expressed frustration at the slow and tangled nature of music and TV licensing. Their solution? Legislation (or quasi-legislation like the GBS) and possible compulsory licensing – the same response as they had with the book trade over GBS. During the entire time that the GBS debate was running, I received exactly no communications from Google directly. Everything was broadcast-style, with no possibility of discussion. There was no point of contact with my world, no possibility of negotiating terms. It was: we’re doing this with your stuff. You will either get on board, or you won’t. If you do, we will give you the following (pretty awful, non-negotiable) deal. If you don’t, we may – but do not have to – stop using your material. Well, okay, I exercised my right to walk away from the table – the single most important right in any capitalist society, because without it, you can always be held to a lousy deal. And it is that right which compulsory licenses in their various forms take away.

The Hargreaves Review is not about overturning the Digital Economy Act. It’s not going to liberalise in favour of filesharing. It may recommend legalisation of format shifting of content, but that’s about it for the kind of copyright liberalisation people tend to think of when they hear those words. And while it does appear that Ian Hargreaves has a strong sense that IP as it stands is not suited to present needs, it also appears that he is aware of the complex nature of the discussion. Ultimately, though, the review will not make law; David Cameron’s coalition will do that, and if my experiences during the GBS debate is any guide, parliamentarians are more than a little bewildered by this sort of discussion and unsure why or whether it’s important. Worse, it’s hardly vote-winning stuff. So they tend to bend with the wind which blows from Number 10 unless given strong reasons not to.

So please, please: think about what you want the creative world to look like, and keep your eye on this discussion. Because it is crucial.

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At least one of the purposes of IP as an institution is to benefit society: to promote creativity by allowing creatives to profit from their work.

That’s a very pragmatic, even instrumental underpinning, and it’s the ostensible basis of US copyright law. It’s a straight trade: society gets brainwork, brainworkers get cash. There’s more to it, though; in some jurisdictions, the law recognises moral rights – the right to be identified as the author or originator of a piece of brainwork, and the right to prevent that brainwork from being chopped up, abridged, remixed, adulterated… call it what you will. And Karl Marx, of all people, asserted that creativity was at the heart of human identity. The moral sin which lies behind the exploitation of the Proletariat by Capital is in part the perversion of the natural desire to work, to create, and the separation of a person, the alienation, from the product of their labour.

To some, those moral rights go further and are more profound – the basis for copyright is not to benefit society but to serve individual creators; the International Federation of the Phonographic Industry will tell you that copyright springs from a basic belief that “the people that create, produce or invest in creative work should be the ones that decide how that work should be reproduced and made available to the public.”

The Royal Irish Academy maintains that the oldest mention of the concept of copyright regards the Cathach manuscript, copied in haste. The original judgment on the copy was that it belonged fundamentally to the original; that the essence of the thing was the text, and that essence was what was owned. The manuscript and the copy were one.

And, you know, there is absolutely no doubt that creative workers need to get paid, and that if they don’t or can’t, they will produce less (or even no) creative work for the rest of us to use, consume, or enjoy. In a sense, though, IP laws are an attempt to codify a system for societal benefit while at the same time recognising something which is conceptually much more slippery – or was, when these laws were created: the value of pattern, rather than presence.

In the digital and technological world, after all, pattern is king. Intellectual Property is an assertion of ownership rights over patterns. Some of those patterns are created works, but not all. Who has ownership of my DNA pattern? Who may replicate it? Do they need my permission to do so?

That’s a big question as we enter a biotechnological age. Suppose I give blood, or even bone marrow or semen; can those exemplars of my pattern be used to clone organs for use in surgery without my express permission? Or, when the technology becomes available, to clone my body – for whatever reason? If my blood contains antibodies for a given disease, can it be used to make a cure without my agreement? Should the state at that point assert a right to my blood (in replaceable quantities, of course – but still, it’s an alarming notion.) Can I prevent association of my name with the disease the product of my blood is curing? At what point is the pattern of my physical body, perhaps the second most fundamental piece of IP imaginable, property which is said to be held in common? How much of me belongs only to me, and at what point is my pattern part of the shared inheritance of the wider world? On the one hand, clearly, there are issues of public good. On the other, it’s a queasy idea to suggest that my DNA is held in common, or even in trust by me until my death (or seventy years after?) Fundamentally, surely, the one thing I can be said without fear of contradiction is my self.

If we reject the notion that an idea, or a narrative or an iteration of technology derived from an idea, can be owned by one person – or rather, if we assert that ideas and their descendents are communal property – what else have we signed up to? To what extent is a narrative an expression of personal identity? At what point is it separated from the thinker and made communal? How far into the individual may society reach?

These questions thread back into discussions of privacy and personal sovereignty quite rapidly; at present, there’s no acknowledgement of privacy in electronic devices, for example. Warrantless searches of your home are not allowed in most democracies except under exigent circumstances – but warrantless searches of electronic devices, arguably your portable library or even the external map of your thoughts, are much more common, especially at ports of entry (or perhaps not any more). And of course, in the name of IP and crime prevention, there’s an increasing level of online surveillance without warrants.

Intellectual Property and Privacy are interlinked; on a basic level, both are about placing boundaries on things which are these days porous. They are both questions of where an individual may call a halt to the state and the group. All three will always assert an absolute right, and there will always be clashes in the overlaps. But as we move forward with technology, these questions are going to get more and more pressing. Consider: we’re developing the technology to extract images directly from the image processing centre in the brain. We are learning to model and replicate patterns of the self. The possibilities for abuse are considerable.

More prosaically: I have yet to see a model of capitalist society in which creative work would be done without a form of IP in place. Well, that’s not entirely true. I can see rather alarming state-corporate solutions in which either very large quasi-monopolies or state media can afford to hire creatives, and similarly with patent work. It’s not a world I particularly relish, nor one in which I suspect creatives would get a share a profit, not least because profit would be indirect – content would be the honey to sell tangibles and advertising space. One of the questions I asked Andrew Robinson of the Pirate Party UK in a recent email interview was how he envisaged creatives being remunerated without strong IP in place. It’s all well and good to talk about free-to-consumer not being the same as unpaid, but it’s not obvious to me how even a large media company can hope to attract advertisers without some species of protection of their IP. How do you persuade someone to buy advertising space to draw eyeballs when their competitor can make use of the same product without paying as soon as it’s available? (Mr Robinson, who is committed by his party’s manifesto to a right to fileshare, hasn’t responded yet, but the party did say that he would, and in fairness I asked some pretty involved questions which require some fairly well-structured responses.)

It seems to me that the creative/capitalist interface requires strongish IP. I find it odd that people who would never in a million years call for physical property to be held in common will call for the communalisation of intangible property. I have much more intellectual respect for the argument that no property should be private, that we are collectively stewards of everything for one another and for future generations – but I don’t see how we could make a shift to such a paradigm without massive bloodletting, and I don’t know that it would work if we could. However nuts the market is at setting prices, absent total information pouring into some giant supercomputer somewhere, and all the evils of surveillance and control that entails, I don’t know that I see how a planned or centralised system could be better. (We’re roaming a little far afield here… But that’s what happens: creative work is now fundamental to our society – maybe it always was – and this discussion immediately veers off into designing a fairer world.)

All that said, I also think that copyright holders will need to be a little more enlightened about pursuing IP claims.

Things like Creative Commons rely on IP. They’re not an alternative to IP itself, but rather a way of using IP to set things free and add to the global meme pool. I think CC is a treasure; a standard set of permissions which make the position clear and can allow people to play with, remix, recompose, re-envision – or at least, to share without fear of retribution. CC, if it were more widely used, would make the world a great deal less annoying for consumers and a great deal less nerve-wracking for creators. “Yes, of course, you can quote or repost this blog posting. That’s what it’s for. Yes, please, re-use this photograph in any non-commercial situation. No, actually, you may not present parts of this work as your own; it isn’t. And if you’re selling through your site, that’s commercial, so please get in touch and we’ll sort out a deal.” There needs to be a cultural presumption of “yes, sure, use it” for small pieces and items – the present knee-jerk, especially obvious in areas like documentary film, is to try to gouge money. The result is either a) the film never gets shown because it has too many logos which can’t cleared or b) the film is shown with massive blurrings over the various corporate signages, so that a trip through Picadilly Circus on a bus in the course of the film looks like a bad hangover after a night at Floridita. At the same time, people need to think about creative work: the fact that you can incorporate something or copy it without paying for it does not mean that you should; it’s an environment issue – in fact, an issue of the Commons. If people elect not to maintain the creative industries, they will go away. If people elect not to pay for creative work, then no one will be paid for creative work. All of which would be fine and democratic, so long as it doesn’t happen by accident – but we know, painfully well, that markets (and this effectively is one) do not always make good decisions based on complete information. They sometimes make short-term, idiot decisions based on ‘want’ rather than ‘ought’.

Some links:

Doctorow on Copyright, Von Lohmann on DRM (audio)

Boyle’s Public Domain (audio)

The Menace of Mechanical Music [John Philip Sousa 1906] (text)

US Copyright Office FAQ (hypertext)

UK IPO (website)

IFPI (website)

Time for a Google Books Settlement update…

First of all, the Fairness Hearing – the bit where Judge Chin decides whether the Settlement is acceptable to the US court – started on Friday. James Grimmelmann has a transcript here. As you’d imagine there’s a lot of it, but the Maestro has helpfully culled a summary here and here. Even the summaries are not short, but hey: this is rather a significant thing. You can cope.

A few things which have occurred to me of recent days, as a result of the hearing, and of some meetings I’ve been to:

1. Orphan Works

Somewhat startling discussion between Michael Boni for the Author’s Guild and Judge Chin. I’ll reproduce Laboratorium’s account here and then say a couple of things…

Judge Chin: What about those [opted in rightsholders] who don’t come forward?

Boni: They’ll be looked for.

Judge Chin: Aren’t the vast majority out of print?

Boni: So far, some 620,000 out-of-print books have been claimed by 40,000 authors, through the notice program alone. We expect to find a lot of these people. We’ve had an 85% success rate; the UK licensing society has found over 90%.

First up: it’s vital to distinguish here between books which are out of print, which frequently come back into print and (especially if there’s been a film or the author has won an award) sell more copies than they did first time round – and orphan works whose copyright owner is impossible to locate (for a given value of impossible).

Second, Boni seems to be saying here that they expect to find a high percentage of the rightsholders. If that’s the case, I have to ask what we’re all doing here. The whole point, surely, of an opt-out settlement is to bring in those works for whom no negotiation is possible. Otherwise this is just a massive compulsory licensing system for the convenience of a large media company.

Third, the discussion of orphan works has become something of a magic word in copyright reform and Digital Economy chatter in the UK. I’ve been guilt of taking this at face value myself. That figure of five to ten million orphan works is impressive, but it’s a little misleading. Some estimates put it as low as five hundred thousand. If Google expects to find 85% of those rightsholders eventually, then the number of works at risk of loss is… er… well, seventy five thousand at its low end and seven hundred and fifty at the top. Not so impressive as a bargaining chip, is it?

2. The Plan

I think a lot of people are assuming merrily that Google has A Plan. This is very comforting for publishers and agents and writers alike. The digital world is looming and digital piracy (or filesharing or booklending, call it what you like) is already begun. It’s a scary new world, and ho ho! Here’s the most friendly face in it – or one of them – offering to sort it all out. Yay!

Except the thing is Google doesn’t seem to have a plan. Google has a belief in Creative Destruction and a sense that if they put stuff out into the world first and find ways to monetise it later, that will work. It has done before. Never mind that inductive reasoning is not dependable (ask a turkey) or that it may, if it works, work because of Google’s stunningly privileged position as the index of the web rather than because it’s a good way of dealing with stuff. It’s only ‘creative’ if what is produced is better and more powerful and brighter than what was there before, and there’s actually no particular reason to believe that to be the case. This may just be destructive destruction of an industry which is heavily bound up in the culture of our nations and whose existence props up the production of long-form fiction and all sorts of other stuff, in favour of, er, Google and companies like it which are essentially aggregators and searchers rather than content creators.

Google has said repeatedly that they are not entering publishing, and we tend to take that with a pinch of salt. Guess what? I think it’s absolutely true. They’re not. If they end up being in the position where they have to take over some of the roles of publishers, that will be a side effect rather than an ambition, and they may not do it very well. Indeed, they may choose not to do it at all, leaving the broken bits of our industry to fester where they lie.

Or they may become a great publisher. The point is, I don’t think they know.

3. The Plan (2)

Google’s mission statement is “to organize the world’s information and make it universally accessible and useful”. The Settlement cuts off in January last year, and from now on, Google will notionally be focusing on contractual and legislative means of acquiring the right to display books. Unless they can persuade the governments of the world to grant them an compulsory license (unlikely) there will be books whose rights they do not acquire. In fact, there will be many. The publishing industry produces hundreds of thousands of new books every year. A percentage of those will be exclusive to other internet formats. Some of those will be successful. Google will be in the position of watching its library shrink in proportion to new output. So here’s the question I’d really like an answer to:

Are we going to go through this whole process again in ten years time with Son Of GBS?

Because you have to wonder.