Wednesday, February 3, 2010

Free beer culture

My devoted fans will no doubt recall my obsession with the Google book settlement and my irritation with the endless carping about a fundamentally noble goal. Most every objection I have read to this agreement is based on poor reasoning, or is an obvious shill for the publishing industry, or is simply a byproduct of the everyone-hates-a-winner attitude that so many folks seem to have with successful businesses. But I have found a new objection that I think bears considering. It's actually a whole new type of objection, written by someone who, not surprisingly (given that he is a close personal hero of mine), was as skeptical of earlier critiques as I.

And with that intro, I give you the hardest-workin' man in law-biz, LL.

There is much to praise in this settlement. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than "fair use" would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not. (Not to mention that the deal is elegant and clever in ways that a contracts professor can only envy.)

Yet a wide range of companies, and a band of good souls, have now joined together to attack the Google settlement. Some charge antitrust violations. Some fear that Google will collect information about who reads what--violating reader privacy. And some just love the chance to battle this decade's digital giant (including last decade's digital giant, Microsoft). The main thrust in almost all of these attacks, however, misses the real reason to be concerned about the future that this settlement will build. For the problem here is not just antitrust; it is not just privacy; it is not even the power that this (enormously burdensome) free library will give this already dominant Internet company. Indeed, the problem with the Google settlement is not the settlement. It is the environment for culture that the settlement will cement. For it practically guarantees that we will repeat the cultural-environmental errors of our past, by now turning books into documentary film.

It's interesting that in the background of this, you can really hear the influence of Michael Heller's Gridlock Economy, and I hope you're going to be hearing it a lot, because I believe his basic idea was pretty deep. Too many owners spoil the broth. If we cut culture up into tiny, isolated and unusable chunks, it will become, um ... unusable. Culture is unique commons that needs both incentives for expansion and protections for the shared access that constitutes its value. This is why it is both similar to and different from the tragic commons of land, and why it requires a property regime suited to it specifically. Thoughts are not turf.

I only know that the two extremes that are before us would, each of them, if operating alone, be awful for our culture. The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either--pushed by the content industry--that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past.

Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand. This may be too much to ask. The idea of balanced public policy in this area will strike many as oxymoronic. It is thus no wonder, perhaps, that the likes of Google sought progress not through better legislation, but through a clever kludge, enabled by genius technologists. But this is too important a matter to be left to private enterprises and private deals. Private deals and outdated law are what got us into this mess. Whether or not a sensible public policy is possible, it is urgently needed.

Lessig's objection has the ring of truth to me. Despite my barking defense of it, there is something disturbing in the Google settlement -- precisely the fact that it had to happen to begin with. If we had anything resembling a political system to deal with these questions I would certainly prefer that option. Google forcing the issue in this way is second best. Yet it is the only viable option we are left with.

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