Note from Tim O'Reilly

[Joseph Esposito <espositoj@gmail.com>]

Tim O'Reilly is a gifted entrepreneur, who has consistently bet right on
digital media.  His recent letter, which was posted to this list, makes
some strategically astute comments about the current fracas over the
Google for Libraries project, which, as everyone knows, has disconcerted
not a few publishers.  I wish to remark on one section of that post:

"Let me take this out of the realm of copyright law for a moment, and ask
about which side in this debate is going to provide benefit to both
authors and readers.  Is it google, or is it the publishers?"

While O'Reilly may be strategically on target, philosophically there are
questions about his formulation.  (Yes, let's all appreciate the irony in
this, as when we chuckle about the Frenchman who remarked:  "That is all
very fine in practice, but it doesn't fit the theory!")  Stepping outside
copyright law sounds like a nifty idea.  I would also like to step outside
the laws on recreational drugs, AMT, and the speed limit on Silicon
Valley's Route 101.  Stepping back into the law, the question is not for
whose benefit a particular program is but who owns the property in
question.  Copyrights are owned by their authors at the act of creation.  
Often authors assign these copyrights, in whole or in part (the norm), to
publishers.  If a publisher is knuckleheaded enough to insist on charging
$10,000 for a novel, which will then sell no copies and make not a penny
for the publisher, well, that is the publisher's right.  I once heard an
otherwise mild-mannered librarian express outrage that a publisher would
not permit a library to scan a work under copyright to put it on
ereserves.  "That book is part of our heritage!" the librarian said.  I'm
afraid it's not:  it's the publisher's property, subject to the
deliberations of the courts on what constitutes fair use.  If it were
truly part of the public's heritage, there would be no need to invoke fair
use.

One perspective, and not the only one, on matters of copyright, Open
Access, fair use, and so forth is that it is a clash between innovation
and appropriation.  Innovation requires capital; whether it is private or
public capital is beside the point:  someone has to put gas into the car.  
O'Reilly Media has financed the creation of copyrights and then has gone
on to do very creative--and profitable--things with them.  I know of no
argument that would prevent someone from financing copyrights with the
intention of making some or all of the rights available to the public free
of charge.  (This is why in an earlier post I commented, to the outrage of
some publishers, that it is entirely appropriate for a funding agency such
as the NIH to insist on Open Access publication of articles based on
funded research.)  This is different from appropriation, where copyrights
were financed with one set of aims (for the benefit of shareholders), but
are now being eased into the public realm, a public, it should be said
with the despair of an old-line Liberal, that is showing less and less
inclination to fund civic infrastructure.  Random House, Reed Elsevier,
John Wiley, and their ilk may all be making a big, big mistake, but it is
their mistake to make.

A final note and anecdote on fair use.  In my view, it is unfortunate that
so many people claim to know precisely what constitutes fair use.
 We can argue about this all we want, but these matters get decided in the
courts with very specific sets of facts, courts that we all pay for with
our taxes (including AMT). The anecdote:  I have listened in on numerous
conversations about the now-notorious judgment against McDonald's won by a
woman who burned herself with a cup of coffee.  My Libertarian friends are
outraged by the judgment.  My Progressive friends (there are more of
these) are gleeful that McDonald's got its comeuppance.  What the
Libertarians and the Progressives share is that neither of them has read
the court transcript. -- Joe Esposito