So I've been having a (very civilized) exchange with the Association of American Publishers over their Google lawsuit. I'm basically furious about what's going on, though I can't blame them directly: it's the membership that decides what they do. I post my exchange to date below (eliding some bits not relevant).
In effect this post constitutes really an Open Letter to the Publishing Community, though from some blogs I'm reading—notably, because of their position as an agent, Booksquare, who comments here and here—this blog will be preaching to the converted.
First e-mail sent when I heard of the lawsuit:
Dear [...]:
I have a bit of a dilemma here actually as I vehemently disagree with the AAP’s position. This happens to be an issue I’ve studied very closely (we have a number of books under contract on the subject of intellectual property)...and it’s not even, unfortunately, something I can just keep quiet about disagreeing with either. But I don’t want to put you or the SIP Committee in a difficult situation—in part because I believe the AAP’s position on this is particularly harmful for small and independent publishers, even more so than the AAP’s lobbying on behalf of the Sonny Bono Copyright Extension Act.
Is it sufficient, when publicly declaiming and doing the things I do, to simply not refer to my membership of the committee? How does the AAP handle this kind of situation (I’m sure I’m hardly the only AAP member who has disagreed with the AAP’s position on a given topic).
Thanks and sorry! (And no rush, I’m in Frankfurt right now...)
Richard
Here was the AAP's response:
Of course, we at AAP are sorry to hear that one of our members vehemently disagrees with AAP's position on the Google Library Project. However, as you might imagine, such disagreements are not unprecedented and can be expected to arise from time to time. AAP's support for the Digital Millennium Copyright Act, for example, has been the subject of disagreement with some of our members who publish in the field of computer research and security. However, such disagreement has not stopped AAP from continuing to support the DMCA nor has it stopped those members from publicly disagreeing with AAP's position on the matter.
When these disagreements arise, we do our best to try to make sure that members who disagree with a position or action taken by AAP fully understand the reasons why AAP has taken the position or action, as well as the process by which the decision was reached to take the position or action. AAP always tries to act based on broad consensus among its members, but this does not mean that AAP acts only where there is unanimity among its members.
As you know, AAP has a Board of Directors that is elected by our members and empowered by AAP's bylaws to make decisions and take actions on behalf of the entire AAP membership. Quite often, issues that eventually come before the Board for decisions and actions are initially explored and considered by one or more of AAP's committees and divisions. AAP staff routinely work to facilitate participation in these committees and divisions by all interested members, and members are always encouraged to contact AAP staff to make known their interests, concerns and views on relevant matters.
AAP cannot, should not, and does not try to censor or silence members who disagree with specific AAP actions or policies. Although we sometimes hear of members who consider withdrawing from AAP membership based on such disagreements, it appears that they usually decide that the overall value of AAP membership and their ability to express their dissenting views both within and outside of the AAP clearly warrant their continued membership.
Please feel free to contact AAP staff, including myself or our President and CEO Pat Schroeder, if you are interested in discussing the actions taken by AAP concerning the Google Print Library Project and your reasons for disagreement with those actions. We would certainly welcome the opportunity to answer any questions you may have regarding the basis for AAP's actions, and perhaps to even persuade you to reconsider your disagreement with those actions.
One additional point -- you are incorrect when you refer to "AAP's lobbying on behalf of the Sonny Bono Copyright Extension Act." Because our members were deeply split on the question of whether Congress should, as a matter of public policy, extend the term of copyright protection by an additional 20 years, AAP did not take a position for or against that legislation when it was pending before Congress. AAP was involved, at the request of the Register of Copyrights and the chairman of the House Judiciary Committee, in negotiations with the education and library communities regarding a special section of that legislation that provided certain privileges to those communities with respect to certain uses of copyrighted works during the additional 20 years of protection provided by the legislation, but AAP did not lobby for or against enactment of the legislation. Subsequently, when the legislation was challenged in court on the grounds that Congress lacked the constitutional authority to enact it, AAP did join a "friend of the court" brief that rejected this argument and opposed the challenge to the legislation on those constitutional grounds; however, we made certain that the brief clearly noted that, on the public policy issue, AAP had not lobbied for or against the legislation.
I hope this response is helpful to you.
Best, [...]
Association of American Publishers
50 F Street, NW 4th Floor
Washington, D.C. 20001-1530
Very reasonable, and I was busted on the non-trivial distinction as regards how they in fact handled the business of the Copyright Extension Act. Here's my response which basically outlines a chunk of my take on the matter, though the business logic, about which I do feel strongly, was neglected here since I do think it's been fairly widely covered elsewhere.
Dear [...]:
First let me register my gratitude for your comprehensive response, and second my apologies as regards the Extension Act—I based that assumption on the fact of the amicus brief filed at the time of the Lessig case—I was writing late at night from Frankfurt without access to much but my slightly faulty memory. The difference between lobbying for the bill, and filing an amicus brief that it not be overturned is not that great, but I do accept there is a difference. I would nevertheless have wished the AAP to support Lessig, not the government, in that case, though glad that the AAP did not take a position on the extension of the term of copyright legislatively.
I understand the process whereby this decision was reached, and I am aware that it reflects not only a large majority of the board, as your press release indicated, but of the membership as a whole (and, probably, not just a revenue-weighted majority but a majority of members, and probably a rather substantial majority to boot.) So it’s an entirely legitimate decision in a procedural sense, I do very much recognize that.
Over the last year, I have made a substantial commitment of my company’s time and energy to fighting what I consider to be an intellectual property land grab more significant than the actual 19th century land grab (recognizing that the expansion of trademark protections are probably more egregious than those in copyright). Fair Use is withering and its defenders are relatively few and dramatically under-resourced—I am adding Soft Skull to their number, for what that’s worth. I have several books under contract dealing with different aspects of intellectual property rights, and they would largely be aimed at, inter alia, defending fair use, expanding the use of licenses such as the Creative Commons, and returning the copyright term to the original 28 years, a la the Founder’s Copyright movement. Given this, it would be impossible for me to remain silent when my peers are adopting an approach completely contrary to what our books will be advocating. It is incumbent on me to find whatever soapboxes I can find, and try to make as strong as possible a case as I can to persuade that majority to change their position. I’ve inveighed against both the music and film industry for their shortsightedness in interviews and panel discussions in the past—I would be justifiably branded a hypocrite for failing to do so in my very own industry.
Prior to the AAP suit, my situation wasn’t really complicated in that I could simply dispute with individuals. But now, in effect, the situation is fixed, and whatever pontificating I might do would therefore be seen to be against the AAP as a whole, rather than the individual positions taken by different companies. [...]
You did however ask me to outline the basis for my opposition so as to give you a chance to respond.
I would characterize my overall position thusly: the long-term future of American publishing depends fundamentally on the quality of the content that we produce and sell. An excessive focus on the ownership of that content, and on restricting how others might make alternative uses of that content will seriously impinge on the value of that content over decades. A hyperbolic but nevertheless accurate example: Shakespeare’s plays would be impossible to publish under the present conditions. More contemporary examples: Brecht’s plays. Ulysses. All great art (also known as: backlist) is a compound of that which has gone before (most of the great classical music liberally quotes antecedents, likewise in painting).
The fundamental goal of copyright in the Constitution is not to confer an absolute property right but rather to stimulate cultural production: a limited property right being a means to that end, rather than an end in itself. Thus we are always intrinsically talking about relative values, trade-offs, balancing acts, etc. Having the world’s books available in searchable and granular format online is a tremendous boon to the culture, and will result in more and better books. Again and again, in comments issued by publishers and authors, by the AAP and the Authors Guild, there is a profound failure to perceive that such rights are not absolute property rights, but relative property rights, issued provisionally to achieve a larger social purpose. That is how it is, and how it should be.
I’m not going to address the business issues here except to note that I would love to see empirical data that suggests that the value of our intellectual property would be diminished by its availability in the proposed Google Print for Libraries format...the Amazon Search Inside and Google Print for Publishers both seem to suggest the opposite. I also cannot see how one could make the case that the works’ availability in this format will deprive publishers of licensing revenue except in a very few circumstances (Google scanning highly granular reference works being the only exception I can think of). The business issues are legion, but the positions (with which I happen to agree) are presently quite widely disseminated, in fact they’re on blogs by authors, readers, techies, agents (anonymous) everywhere. I’m merely here going to add some points that do not appear to be widely expressed already:
1. I ran the Permissions Dept at Oxford Univ Press for 2 years in the late 1990’s and watched how scholars (and sometimes editors, and editorial assistants, and researchers) devoted hundreds of hours of work clearing permissions for “snippets.” This is a vast waste of resources and one not taken into account, I can be almost positive, when publisher weigh the important of less restrictive fair use conventions.
2. Obviously you have your legal advice, and Google has theirs, but from what I’m reading, a very substantial majority of IP lawyers and scholars take Google’s plans to be Fair Use.
3. The e-mail letter to the Small & Independent Publishers Committee [which apprised us of the suit, and of which I am a member, though I've flagged in my attendance in the last year] hints at how grateful SIP publishers should be that the AAP is spending its money on this case. I would like to register one important caveat. Soft Skull Press has been subject to three copyright and trademark cease-and-desist letters (one from an AAP member) in the past two years, letters that I could only defend against because my fiancee is an intellectual property lawyer. The biggest threat Soft Skull’s intellectual property faced in the past 2 years was from a claim from HarperCollins that was so overreaching it bordered on sanctionable. In sum, the largest members of the AAP are well able to defend themselves, and have used their resources in the past to attempt to legally strong-arm smaller members of the AAP. Thus while I accept that the AAP has to represent the expressed interest of a majority of its members, I do hope that it will not be represented to the public that the AAP is riding to the rescue of its smallest members—it would be just a little too over-the-top. (Your press release does not do this, I recognize, only the letter to us.)
4. Unlike in trademark law, where a failure to defend one’s trademark can result in a weakening of the mark, failure to sue for copyright infringement does not in any way diminish one’s right to sue in other cases. Again and again, one hears a domino-effect claim from parties opposed to Google Print. I have no idea what that claim means since it is not a legal observation. However, should other companies seek to do what Google is doing and remain within what many, include myself, consider to be the bounds of fair use, then a domino effect would be wonderful. If, on the other hand, they do not operate within the bound of fair use, let’s say they propose to sell entire chapters, or the book, then failing to stop Google would have no effect whatsoever on anyone’s ability to sue this other hypothetical company. In fact, should the courts rule against the AAP, that precedent could create an even more expansive approach to Fair Use than the one presently in effect.
My thanks for this opportunity to air my concerns. I suspect my position, because largely historical/philosophical, will be difficult to reconcile with that of the majority of the Board: the tension lies even within the components of the AAP mission quoted in the press release—“[th]e protection of intellectual property rights in all media, the defense of intellectual freedom, and the promotion of reading and literacy.” The first item can be at odds with the second and third, and I fear the AAP’s members fail to realize that if you cling too tightly to the property, you’ll impinge on the freedom and the cultural literacy, and the future intellectual property will be that much poorer as a result.
I do feel that a debate, not only about Google but also about the larger fair use issues that the Google matter raises, can and should ensue, alongside whatever legal process the AAP Board chooses to follow.
Best regards,
Richard Nash
--
Publisher, Soft Skull Press
55 Washington St, Suite 804
Brooklyn NY 11201
PLEASE NOTE NEW ADDRESS
phone: 718.643.1599
fax: 866.881.4997
mobile: 917.804.0716
richard@softskull.com
www.softskull.com