Friday, December 16, 2005

An argument for the noble loss

I am not entirely inexperienced in the area of federal court cases. During my 8 years on the Board of Directors of Manhattan Neighborhood Network we went to federal court a time or two. We were threatened with court cases regularly.

You’ve undoubtedly heard of some of them, extremists of every flavor arguing that by changing their program’s timeslot, or enforcing an allocation intended to give equal access to all, we were trampling their individual rights. Of course, the way that you heard these stories, through the media filter, was that some outrageous group was on television when the public had just assumed that such views could not be.

I spent a good amount of time with our top-shelf legal team.

In these cases I consistently advocated that we should argue a Cass Sunsteinian view of the First Amendment: That the privilege afforded to my right to say whatever I want to say is rooted in the democratic desire for a polity informed through exposure to a multiplicity of viewpoints. That our role as a public access television center was to give as broad a range of people as possible access and, significantly, to serve the broadest community possible as well.

This is not an argument for any individual viewpoint or for any specific range of viewpoints, and the details of implementation could - and should - be endlessly discussed. But I never got there. I could never get by the First Amendment case law and entrenched dogma that the only element to be considered was the individual’s right to say whatever.

So why did I want to put that argument out there and lose? BECAUSE IT WAS RIGHT! And it might, just might, find its way into a dissent and one day be picked up and turned into law.

Now we on the left (and increasingly these days they’re doing it on the right) are always strategically deciding our moves rather than going right out there and arguing for what we believe. I’m in favor of the noble loss. We’re scared of that right now with same sex marriage. I’m not. If we lose I’m going to be worse off than I am right now? If we lose maybe we’ll know we lost and fight harder!

Google Book Search is the subject at hand. The case lays bare how literally technical the copyright claim is: that the technical need to copy - rather than use, say, some artificial savant intelligence that could read and absorb the full text content then call it up from memory - obliterates our ever-shrinking fair use claim that we have a legal right to index and access these snippets.

If Google looses, we all lose. But I for one am not going to blame Google for trying. I will, on the other hand, blame them if they - like Clinton with Don’t Ask, Don’t Tell - sell us out in settlement.

If Google settles

There was a Google Book Search debate at the American Bar Association in New York on Wednesday night. Ben Vershbow at if:Book has a good wrap-up. He discusses the point where Google apparently lost the crowd.

Allan Adler of the Association of American Publishers said Google betrayed the weakness of its fair use claim in the way it has continually revised its description of the program:

Almost exactly one year ago, Google unveiled its “library initiative” only to re-brand it several months later as a “publisher program” following a wave of negative press. This, however, did little to ease tensions and eventually Google decided to halt all book scanning (until this past November) while they tried to smooth things over with the publishers. Even so, lawsuits were filed, despite Google’s offer of an “opt-out” option for publishers, allowing them to request that certain titles not be included in the search index. This more or less created an analog to the “implied consent” principle that legitimates search engines caching web pages with “spider” programs that crawl the net looking for new material.

In that case, there is a machine-to-machine communication taking place and web page owners are free to insert programs that instruct spiders not to cache, or can simply place certain content behind a firewall. By offering an “opt-out” option to publishers, Google enables essentially the same sort of communication. Adler’s point (and this was echoed more succinctly by a smart question from the audience) was that if Google’s fair use claim is so air-tight, then why offer this middle ground? Why all these efforts to mollify publishers without actually negotiating a license? (I am definitely concerned that Google’s efforts to quell what probably should have been an anticipated negative reaction from the publishing industry will end up undercutting its legal position.)

Now here’s a scenario I imagine. The brash hubris of the billionaire founders who want to “do no evil” and “organize the world’s information” means they really thought they could do things differently; be a different kind of corporation.

In an effort to be more quick and nimble than any giant corporation can reasonably be, there was indeed naiveté when they put this ambitious project out there. And so yes, they’ve had to “clarify” as they’ve gone forward. The tragedy will be if that undermines their position.

Now I would have preferred if they had never used the implied consent privilege as their model. Opt-out was a mistake; Fair Use Abeyence was the best I could come up with, and I’d have no problem with such an arrangement with publishers.

But now the concern implied by Susan Crawford, one of those arguing in favor of Google’s position on the ALA panel in her wrap-up - “I very much hope that Google won’t settle this case.  We need these issues decided.” - that Google might settle, is one that worries me too.

I’m thinking, “Once burned, twice shy.”

As much as I suspect that the lawyers weren’t driving this project at its start, I’m guessing their currency has risen considerably since. And you just know they want to settle. I only hope Page and Brin can stick to their guns, do no evil, and take this fight to the end. Even if in the end they lose, I will applaud and support their ambition.

More fake news

So it’s not just the administration directly paying for fake news, their lobbyists have been paying for it too. I guess those poor think tank fellows couldn’t make ends meet from their right wing benefactors alone. Romenesko:

Copley News Service syndicated columnist Doug Bandow says he accepted money from indicted Washington lobbyist Jack Abramoff for writing as many as 24 op-ed articles favorable to the positions of some of Abramoff’s clients. “It was a lapse of judgment on my part, and I take full responsibility for it,” says Bandow, who has resigned his senior fellow position with the Cato Institute. (Read some of Bandow’s columns.)

James Joyner has a roundup of blogger reaction. Not including Robert Kaplan:

Tom Giovanetti, the president of the Institute for Policy Innovation, unlike his Cato cousins, saw no reason to seem to be appalled by pundit payola: “If somebody pinned me down and said, ‘Do you think this is wrong or unethical?’ I’d say no.” Critics, he said, are applying a “naive purity standard… I have a sense that there are a lot of people at think tanks who have similar arrangements.”

I think so too, and I’m just a naive American!

Atrios calls for a blogger ethics discussion. Me, I hope Jimbo has suspended Bandow’s Wikipedia account.