You Say You Want a Revolution: ebooks, licensing, and the future

I completely loved Mita Williams’ recent talk on the future of libraries and her style of blogging about it, and the second I read it wanted to do the same kind of post myself. And, lucky me! I was one of the speakers at yesterday’s Law Librarians of New England Fall Meeting, so now I have this talk to blog! (Side note: if you ever have the chance to meet Harvard law librarian, gentleman farmer, and bon vivant Kyle Courtney, or to hear him speak, do that.)

Kyle handed me this fantastic theme to riff off of. And he arranged the six speakers in three themed pairs that had a lovely arc to them: how to make ebooks; cool things we can do with them right now; and then my pair, “ebooks, licensing, and the future”. Well. I do like an invitation to make my own fun.

The talk

What’s the future of ebooks? Well…

…we’re all doomed.

Why are we doomed?

Over the last two-hundred-some years the scope of copyright protection has steadily increased, and the space left for fair use has shrunk. Originally copyright adhered to only few types of works, registration was required, and the term of protection was 14 years; the result was that the vast majority of works were public domain from their inception, and the rest entered the public domain not long thereafter.

Since then, legislative acts and judicial decisions have extended copyright to more types of works, dropped the registration requirement, and extended the term of protection by many decades.

In addition, with some types of works — ebooks, software — you don’t even get first sale rights because they’re typically not sold; they’re licensed. Contract law, not just copyright law, applies.

And there’s not an incentive for it to get better. Public choice theory tells us that, when a concentrated group of actors stands to benefit from some policy and a large, diffuse group stands to lose, the concentrated group has an advantage even when the total costs outweigh the total benefits. It’s simply easier for them to coordinate. The internet lowers the coordination costs for diffuse groups, as the SOPA protests demonstrated, but concentrated interests still have an advantage.

Public choice theory also says there’s a free-rider problem when you’re doing work for the public good: anyone in the diffuse group has an incentive to stand back and wait for someone else to do the hard work, since everyone reaps the benefits. But then no one does the work, and no one benefits.

It’s also a fact about human psychology that we tend to be more motivated by fear of loss than by hope of gain. Major media interests are very clear on what they stand to lose if their properties enter the public domain and they can no longer exclusively monetize them. Society at large stands to benefit from increased consumption, remixing, sharing, creation — but that’s just not as motivational as fear of loss.

And we know that these concentrated interests have the upper hand, and the government won’t magically make copyright better, because here’s Derek Khanna. A few weeks ago he wrote a memo for the Republican Study Committee on three myths of copyright and how to fix them. He pointed out that copyright laws are not only in conflict with social norms around digital media, but also with principles the Republican Party professes, like limited government and free markets. The memo was buried inside of 24 hours.

And it gets worse. Because even where we have legal rights to use content, our technical and distribution infrastructures don’t protect them.

This is a screenshot of the first unglued ebook, in the New York Public Library ebooks catalog. It’s offered under a CC BY license…or not. Because there are zero copies available, with one patron on the waiting list, and the DRM info tab says “file sharing or redistribution is prohibited”.

This is a lie.

Open content is an edge case that our systems aren’t engineered for.

And I don’t mean to pick on just library ebook vendors. I can pick on Google Books, too. Here’s Lawrence Lessig’s Free Culture, offered under a CC BY-NC license…or not. Because Google Books will sell it to you, but you can’t download it. You can preview it, but only in limited preview. The system simply doesn’t know how to protect those rights.

So we’re all doomed.

Unless…

It’s appropriate that the event poster was based on Marianne, an allegory of liberty and reason, leading a French revolution. Not the French Revolution but another, several decades later: the July Revolution. In it the people rose up to depose the traditional monarchy that had been reinstated after the Revolution, after Napoleon, and to replace it with a limited, constitutional monarchy. The replacement of hereditary right with popular sovereignty. A grassroots revolution.

And it’s even more appropriate, because one of the major precipitating events for the July Revolution was that the king revoked freedom of the press. And the newspapers said exactly what they thought about that. And the people rallied in defense of their right to freedom of speech and access to information.

No one’s going to fix this for us. We need a grassroots copyright revolution. What would that look like?

We saw one example in the second panel: the Berkman Center’s H2O Project, which incentivizes professors to freely distribute their work and provides a technical infrastructure that safeguards open licensing.

Creators have many incentives to create. For some, it’s their livelihood, and traditional copyright and monetization work well. Others create because they want to educate or advocate, because they’re driven to make art or because they want their voice to be heard in the cacophony of culture. For some, impact is the greatest incentive.

If we can get to creators early enough and educate them about their options, and provide an infrastructure to protect those options, we can have content which never enters the copyright trap, which is always available for readers and libraries.

For content that’s already been produced, we need a grassroots revolution to make it free, in a way that respects authors’ and publishers’ incentives. Enter Unglue.it.

How it works: rights holders set a price that makes it worth their while to reissue their already-published works under a Creative Commons license.

They may choose that price to cover potential future lost sales, or to protect the value of a brand, or to cover conversion costs if there isn’t already an ebook edition — whatever makes sense to them.

One of our current campaigns is for So You Want To Be a Librarian, by Lauren Pressley, published by Library Juice Press. If it raises $9000 by December 31, it’ll be unglued.

Lots of people are supporting the campaign. They pledge whatever amount they want, and are only charged if the campaign meets its goal by its deadline. Maybe you’ll join them?

If the campaign succeeds, the book is released under a Creative Commons license of the rights holder’s choice — in this case, BY-SA — and it goes forth into the world to be read, copied, remixed, shared, and maybe even updated as times change.

So those are the two types of grassroots copyright revolution we need: one to protect reusability from content’s creation, and one to get content out later. Born-free and made-free.

Why have we not yet stormed the barricades?

Well. We’re really busy. Solo librarians, libraries with just two or three staffers, underfunded nonprofits…we’re really busy.

And it’s human to put the urgent ahead of the important. Sometimes the urgent is the important. And it makes sense that we subcontract the creation of our workflows to vendors. It’s easier to sign on the dotted line, let someone else invent how we do things and then devote our energies to serving those workflows that someone else has created.

We have this urgent need to provide access today. But we also need to provide access to patrons tomorrow, and to patrons with disabilities. And to preserve content for the future. And to protect sharing. And privacy.

One thing I’ve been thinking about a lot lately is Google’s 20% time. Engineers at Google get to spend 20% of their time scratching whatever itch motivates them. The results are Google’s intellectual property and have ended up as core product lines, like Gmail.

I’ve understood this as a way to attract and retain the kind of creative, driven people you want if you’re Google. And it is. But I’ve realized it’s more.

Because if 100% of your time is devoted to maintaining the status quo, when do you invent the future?

I leave it to the lawyers in the audience to decide if this quote is fair use, and to all your moral intuitions to decide if it should be.

“Unless someone like you cares a whole awful lot,
Nothing is going to get better. It’s not.”

You say you want a revolution.

Let’s go.