Wednesday, January 27, 2010

Muchnick on Lessig on Google

Lawrence Lessig has written a very important new essay for The New Republic. I urge everyone to read “For the Love of Culture: Google, Copyright, and our future,”

I’m going to say just a few things about this piece, and not nearly enough to satisfy hard-line critics of the Google Books settlement. The main things on which I want to comment are the levels of engagement here of an obviously erudite and thoughtful voice on newfangled copyright issues. I still think Lessig gives short shrift to my own case now at the U.S. Supreme Court, Reed Elsevier v. Muchnick, and how all these pieces fit together.

Previously, I have written irksomely about a similarly disproportionately small level of engagement by another esteemed copyright voice, Pam Samuelson – who, unlike Lessig, is indeed one of the hard-line Google critics. See “Confidential to Pam Samuelson: Please Add a Teaspoon of Vision to Your Abstract Critique of Google Books,” November 19, 2009,

In the more distant past, I have written even more irksomely about Lessig, a media go-to guy whose aloofness toward our newspaper and magazine freelancers’ copyright case had struck me as more politically canny than intellectually consistent. See “Lessig’s Legacy: Only Halfway There,” February 1, 2008,

Today I am happy to say that Lessig, with the great length afforded him by The New Republic, moved some distance toward remedying what I’ve seen as a cop-out in my limited correspondence with him. (He had pleaded refusal to comment on "Freelance" because he didn’t want to jeopardize his focus by commenting on “a technical issue of law that is not anything I know about.” Huh? I don’t think the esteemed appellate court judge and author, Richard Posner, accepted answers like that when Lessig clerked for him.)

Previously Lessig had written extensively about the woes of documentary film makers, who live off snippets and are chilled in the current ultra-litigious climate by copyright holders demanding payment for “every bit and byte.” Lessig has never gone as far as perhaps the most prominent documentarian in the land, PBS gasbag Ken Burns, who to his everlasting discredit actually filed a brief supporting publishers and opposing authors in Tasini v. New York Times (2001) – the predecessor and underlying case of Reed Elsevier v. Muchnick.

In his new essay, Lessig leads off with the documentary problem, but moves on, with felicity and common sense, to connect it to the Google case. And then on to where I think the article gets most interesting: a rumination on, and vision for, the entire new landscape and how the intricate three-way dance of creators, publishers, and the public interest needs to be choreographed.

Lessig evidently still can’t bring himself to utter the words “Freelance” or Reed Elsevier v. Muchnick – focus focus, you know! – but he comes about as close as you can get in passages like these:

[T]he government should establish the minimal protocols for these registries,... This maintenance requirement should apply to books alone – for now. There are different, and enormously complicated, problems with other forms of creative work, photographs in particular, especially after a generation of law telling creators that they need do nothing to secure complete protection for their work. But the objective should be to include these other works as soon as it is feasible, so that this first and most basic obligation of a property system could be met: that it tell the world who owns what.


The thicket of legal obligations that buries film, music, and every other form of creative work (save books) should be re-made using a rule that gives current owners the ability to secure value for those rights, but through a clearinghouse that would shift us away from a world of endless negotiation to a world where simple property rules function simply.

I congratulate Lessig for his tiptoe in the direction of true comprehensiveness. I am not so partisan about Freelance (let alone Google, where I recommend opt-out) not to appreciate that he thinks and writes with a balance that must be taken very seriously and respectfully as the debate proceeds.


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