(posted by Peter Hirtle)
I have been hoping that a thorough summary of the “D is for Digitize” conference at New York Law School would have appeared on the `net by now, but while there have been some news articles and blog postings about this important event, I haven’t seen an overall summary. What follows is my personal take on the presentations. If you want to learn more, you can follow the links to the streaming video of each presentation found at the Public Index web site. Alternatively, you can read the compilation of Tweets prepared by Calimaq.
The conference opened on Thursday afternoon with two tutorials meant to introduce the basic contours of the settlement. Jonathan Band opened with a nice recapitulation of the points raised in his “GBS: Guide to the Perplexed I and II” (linked from this page), but in a nicely personalized way.
I loved the way he illustrated the problems associated with securing permission to use out-of-print books with the story of the unclear copyright status of one his own works. He noted that when books don’t generate revenue, no one really cared about the ownership issue. Now that Google has put the possibility of money on the table, the confused practices of the past have come back to haunt us. While he ostensibly owns the copyright in his work, he doesn’t have copies of the contracts with the publisher or the print-on-demand company that reprinted it; there was some confusion with the firm for which he worked about whether the book was work for hire; and while the book is still relatively recent, the rights issues will only get murkier with time. If an intellectual property lawyer isn’t sure about the copyright status of his own work, then looking for an orphan works rights holder strikes me as pretty quixotic. The only way mass digitization of in-copyright works can move forward efficiently is through an opt-out system.
The bulk of his presentation was an overview of the terms of the settlement and a useful (for me) introduction to class action law, a topic picked up the next day.
James Grimmelmann, the organizer of the conference (as well as the point man for all things GBS thanks to his very useful Public Index) followed with a masterful explanation of why the settlement has proven to be so controversial. The tensions he described in his talk played out over the course of the next two days. He noted, for example, the legal concerns over the adequacy of the Rule 23 class action procedures, the misunderstanding that many authors (particularly foreign authors) have about class action settlements, and the DOJ antitrust concerns. There was way too much information on which to take notes, so I just sat back and listened and hoped that the slides would be posted separately from the video.
I wish he had time to return at the end of his talk to what he presented at the beginning - namely, the benefits that accrue with the Settlement – because even after listening to a couple days of reservations about the settlement, they still seem to outweigh all of the concerns. I want to see lots of improvements to the settlement, and I wish it had been negotiated differently, but I can’t see any other way of achieving its benefits without the class action approach, which is why I found the rest of the conference so scary.
(continues with “D is for Digitize: Day 1 Morning”)