Sunday, March 05, 2006

Out of print, lost forever?

Law professor and intellectual property rights activist Lawrence Lessig revisits his 2002 losing Supreme Court case, Eldred v. Ashcroft:
[Interviewer]: In your argument before the Supreme Court, Justice Kennedy asks you for empirical evidence that extending copyright has impeded cultural progress. You keep the focus on a point of Constitutional law, though you now regret not citing such evidence. If you could do it over again, what empirical evidence would you give Justice Kennedy and the Court?

[Lessig]: Yeah. It was a good question. The problem is it's hard to point to evidence as in stuff people have counted. But things since then have made the issue clearer. Think for example about the Google book search project. Google wants to index 18,000,000 books and make them searchable. If the book is in copyright, you'll get a "snippet" around the search. If it is not in copyright, then you can see the full book. Of the 18 million books, 16% are out of copyright. 9% are in copyright and in print.

That means 75% are in copyright, but out of print.

Now the publishers say you need to ask permission before you index these books. But how do you ask the 75% of 18 million authors when we have no list of copyright owners, no record of who owns the rights, no way to track down current claimants at all. Yet it stands in the way-- and now threatens Google with a huge law suit-- because the term gets extended and extended. The term for the framers was 14 years, renewable once. It is now life of the author plus 70 years-- which for someone creating in the way Irving Berlin did, would be 140 years.

So, Justice Kennedy, does blocking access to 50-75% of the books in our tradition constitute a burden on our culture?