Sunday, December 18, 2005

Blogging a dead horse

I know I already complained about her article, but Susan Cheever's misunderstanding of copyright law is just driving me batty.

She literally maps the entirety of property law onto copyright law and uses this half-suited metaphor to guide her highly moralistic judgements. In a December 12 Newsday piece entitled "Just Google 'thou shalt not steal,'" she makes copyright claims that would make even Jack Valenti blush. (Okay, so that's a metaphor, too. BUSTED.)

To wit:
Words are property. This principle has been upheld by the law since 1710, when the first copyright law was passed.
Actually, Ms. Cheever, you're talking about the Statute of Anne, which (according to the text of the Act and every generation of British Parliament since its passage) says no such thing. Quite the contrary. British publishers even arranged a collusive lawsuit to try to apply common law principles of property to copyright in books, which failed. When a real lawsuit came out as the publishers wanted (Millar v. Taylor, 1769), that principle actually did make it onto the law books--for five whole years. It was overturned by Donaldson v. Becket in 1774, and the Donaldson precedent--that the copyright monopoly is not subject to the common law rules of tangible property--has stood ever since (Vaidhyanathan, 2001, pp. 42-43).

Let's try one more:
It's a strange experience to see your own property in someone else's possession when they haven't asked your permission for it or paid for it. It's disorienting and infuriating. You've been robbed. That's how it feels when something of yours suddenly appears in cyberspace, whether it's a chair or a book excerpt, a table or a newspaper column.
I cannot speak to how Ms. Cheever feels when she has her words appear online without her permission, but it sure is a lot different than if and when her lounge chair appears on eBay (a comparison she literally makes). If I take her La-Z-Boy, she has one less. If I take her words (as I'm doing now, in fair-use-sized chunks), those words are still just as I found them.

Speaking of fair use:
The Copyright Statute also includes a "fair use" clause, so that a few lines or phrases of a writer's work can be used as illustration by someone else. The amount of words that constitute fair use varies according to court case. At present, it is 400 words.
While I'm no attorney, I'd be much more comfortable using 401 words in a book review than I would be giving out such patently incorrect and totally unfounded legal advice. I've been obsessively studying the copyright debate for a few years now (ask my friends and family; they'll vouch), and I had never even heard this claim before. But I knew the "400 words" detail had mattered at some point. So I looked it up. It's from the Harper & Row v. The Nation case. Harper was about to publish Gerald Ford's autobiography. Time Magazine had an exclusive deal to prepublish a 7,500 word excerpt. The Nation scooped Time, publishing around 300-400 words. Because this snippet was the most interesting part (Ford's discussion of how he felt as he pardoned Nixon), the court ruled that it was not fair use. The Supremes upheld the District Court's ruling that The Nation took "the heart" of the work, directly reducing Harper's ability to collect revenue from this subsidiary revenue stream. (Time pulled out, costing them $12,500.)

Here's how dead-ass wrong Cheever got it. The key finding was that a quotation of even less than 400 words could be an unfair use if done in a bad-faith attempt to undercut a publication's market value. In contrast, I could probably quote well over 400 words of Ms. Cheever's radical misunderstanding of copyright law and, since her piece is already published and I am engaged primarily in withering criticism, I would be on reasonable footing to make a fair use claim.

One more:
Google doesn't like the copyright laws as they have existed for centuries.
This is a profound inversion of who's really changing the rules around here. At the behest of the copyright industries, we've gone from something resembling a coherent (if still not public-interest-minded) copyright law to what most commentators describe as a system of insane, overreaching, incomprehensible, First-Amendment-squashing copyright law. (See, e.g., some of the work by David Nimmer, by all acounts one of the foremost experts on US copyright law, who tries but fails to see recent reforms as minimally comprehensible.)

For example: thanks to 17 USC Section 1201 of the DMCA, simple curiosity involving me, a computer, and a half-baked encryption scheme like CSS can get me convicted for a federal crime. Breaking back into my own house because I lost the key is 100% legal, but breaking into my software installer because I lost the key puts me at a legal risk involving fines in the range of thousands of dollars. Fair use is not even a defense; hacking into a DVD to make a documentary involving fair use snippets is still 100% illegal.

In 1997, the exclusive right of publication wasn't enough for the copyright industries; they wanted to take away my freedom to tinker as well. It is now illegal to make a backup copy of my 5-year-old niece's favorite DVD. That's even though copying a software install CD for the exact same reason is 110% legal. Backup DVD? Illegal. Backup software? Legal. Making a new software key for legally purchased software? Illegal. Make sense to you? Me neither.

Bring your tale of copyright "theft" woe to Dimytry Sklyarov, who was arrested merely for developing software that could manipulate Adobe eBooks. He was arrested in the US for breaking an American law, even though he did all his programming in Russia.

Well, Ms. Cheever, now you've had a lot of your words "stolen" and put up online. But I didn't steal them at all. I quoted them, and I did it because they were wrong. Morally wrong, yes, but mostly just inaccurate. They're based on the utterly incorrect notion that copyright law has any literal relationship to property law. The relationship is metaphorical at best, like TIME IS MONEY or ARGUMENT IS WAR. Just to clarify, here are some literal claims:
The Authors Guild is using its hefty stash of copyrighted materials, a collection of legally granted monopolies not to be confused with common law property, to seek at least partial control over Google Print.

The Guild is seeking control up to and including veto power over business methods and is also probably expecting a cut of revenues.

Google Print will actually increase the propensity that any given user will buy any given book because, unlike Grokster, Google will provide just enough to spark people's interest.

Some of the finest legal minds in copyright commentary, including the initially skeptical William Patry, have weighed in on Google's side.

Making a copy of an entire book is potentially fair use; what really matters, from the standpoint of many of the above-cited legal minds, is how much of the book is accessible to the public, whether publishers can opt out, and other banal details of implementation.

Susan Cheever wrote a highly moralistic column about copyright law which contains several obvious and inescapable misunderstandings of copyright law.
These are propositional claims, which are literally true or false; "words are property" is a metaphor, a cancerous metaphor that has metastasized throughout much of the body of copyright commentary.

As for you, Ms. Cheever, I didn't steal or even borrow your words. Go to LexNex; they're still there. Just like your La-Z-Boy.

Oh, and unlike Newsday, this will be available on the public internet indefinitely. Care to retort?


At 8:24 AM, Blogger Bill Herman said...

So I emailed Cheever with a link to my blog post, and she replied simply, "Get a life."

I wrote her back, of course: why doesn't she get some journalistic integrity?

Those who know so little about the law should not be given printed column inches to spout forth on pending legal cases.

At 1:01 AM, Blogger Bill Herman said...

I've just re-read this some time later (2007), and I'm just amazed by a) the over-the-top nature of this post, and b) the degree to which my rhetorical temperature has cooled in this fairly short time. "Shouting Loudly" was right (perhaps as recently as last summer), but I wouldn't describe my activist-self that way any more.

This post goes too far. I just didn't have to be so brutal and personal. I needlessly repeat her name, use italics, and throw around the accusation of sloppiness.

Don't get me wrong, she IS dead wrong in her understanding of copyright. (I was pleasantly surprised to see that, in later revisions of what was basically the same op-ed, she'd changed some of the most glaring inaccuracies.) But my rhetorical style is also wrong, and I'm glad to have toned it down several notches.

If I were to write the same thing today, I would change the language so that it more clearly attacks the argument. I would also save the accusation of sloppinesss for the end and make it more professional. Perhaps:

"This article perpetuates a gross misunderstanding of the law. Sadly, Cheever is in good company, because it happens all the time. The metaphor of property is largely to blame.

"Journalists and columnists who write about copyright could avoid this problem if only they would avail themselves of the numerous online resources providing helpful explanations that are accessible to non-lawyers.

"In short, before writing inaccurately about the online erosion of copyright, be sure to get online and erode one's ignorance about copyright."

I think that would be much better. While still a bit too stiff for some, it suggests what I make far too explicit (for politeness' sake, anyway) in the original article.

And now, to the meta level...

I've long known that this is one of my most linked-to blog posts (with... drumroll please... 2 links. But one is EFF, which shapes Google rankings like you wouldn't believe). I don't think I suggested it to any other blogs, e.g., BoingBoing. As far as I know, the links just happened, perhaps via Technorati.

Which is just another very tiny shred of evidence that angry, over-the-top rhetoric is one good way to get attention online. Thankfully, it's not the only way.

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