Sunday, November 20, 2005

NPR: The ethicist misses Fair Use

Randy Cohen, the New York Times Magazine and NPR Ethicist, did a segment on All Things Considered tonight about the “dilemma” posed by Google’s Book Search.

I was appalled and astounded to note that in the entirety of the segment they never once mentioned the issue of Fair Use, which of course is central to Google’s claim that it has the right to do the project.

Instead Randy notes that he’s not a lawyer but is happy to proclaim that “as an ethical matter ‘opt-out’ is a terrible idea.”

I agree, but he misses completely that - disputed though it may be - what we’re talking about here is an option which allows authors to choose not to make their work searchable under a Fair Use claim.

Thinking about it, Google changed the name from “Google Print” to “Google Book Search.” Similarly, they should stop saying “opt-out” and call it instead a “Fair Use Abeyance” provision.

The guy who wrote the ethicist on the issue, Tony Sanfilippo from Penn State University Press, made clear the objection was lost revenue. His concern, he said, was a potential loss of sales because Google’s “giving a copy” to the libraries they’re working with:

That of course means less revenue for us which hurts our bottom line and makes it less likely we’ll be able to publish scholarship in the future… All five libraries that are involved have our books and they’ve all either subscribed or purchased digital content from us in the past. Now that Google is scanning the entire libraries they won’t need to do that anymore and that’s our concern.

I agree with Lawrence Lessig that the issue is money, but not the “loss of sales” Sanfilippo describes:

[W]ould authors and publishers be worse off with Google Print than they were before Google Print?

To ask that question is to answer it - of course the authors and publishers are better off with Google Print.

Are they as well off as they could be, if the law gives them the power to extort from the innovator some payment for his innovation?

To ask that question is to understand why this case has been filed: Like Valenti with the Betamax, the publishers and Authors Guild simply want to tax the value created by Google Print. They are not complaining about any “decline in [their] property value” caused by Google Print. They are instead racing to claim the value that ancient law is said to give to them, despite the harm that claim produces for “progress.â€Â�

Falwell’s fa la la la lawyers

Peace on earth A fundamentalist Pax Americana enforced by Falwell’s 1,550 attorneys:

Evangelical Christian pastor Jerry Falwell has a message for Americans when it comes to celebrating Christmas this year: You’re either with us, or you’re against us.

Falwell has put the power of his 24,000-member congregation behind the “Friend or Foe Christmas Campaign,” an effort led by the conservative legal organization Liberty Counsel. The group promises to file suit against anyone who spreads what it sees as misinformation about how Christmas can be celebrated in schools and public spaces.

The 8,000 members of the Christian Educators Association International will be the campaign’s “eyes and ears” in the nation’s public schools. They’ll be reporting to 750 Liberty Counsel lawyers who are ready to pounce if, for example, a teacher is muzzled from leading the third-graders in “Hark! The Herald Angels Sing.”

An additional 800 attorneys from another conservative legal group, the Alliance Defense Fund, are standing by as part of a similar effort, the Christmas Project. Its slogan: “Merry Christmas. It’s OK to say it.”

SZ was soooo right. This year’s * war * is the best * ever!

Via Brew at IJWFTRI.

Why the 99¢ song?

Educated Guesswork looks at Apple’s fight to save the 99¢ song. Music companies want variable pricing, but Eric says:

It’s obvous why the music companies think they want this: they think they can extract more money from users. I’m not so sure. Remember that because the marginal cost of production is essentially zero, any particular price point is basically arbitrary from the consumer’s perspective. $.99 has the advantage of being a focal point, and so fair-seeming (note that the price is also .99 in both Canadian dollars and Euros). If customers start thinking too much about the arbitrariness of the prices, they may decide that those prices are basically unfair and record companies may find that they aren’t able to sell any music at $.99.

In his Long Tail article last year, Chris Anderson calculated that for an album that sells 300,000 copies and factoring in the savings of digital delivery the cost of a song should be 79¢.

Thing is, if the CD is an indicator, the cost of a song will soar above the 99¢ Apple imposed arbitrary limit.

RELATED: iTunes now sells more music than Tower Records or Borders.