It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over [...]]]> Are we in the Age of Intellectual Property?

It’s become a truism in IP scholarship to introduce a discussion by acknowledging the remarkable recent rise in popular, scholarly, and political interest in our field. Thus readers will recognize a familiar sentiment in the opening line of Amy Kapczynski and Gaëlle Krikorian’s new book:

A decade or two ago, the words “intellectual property” were rarely heard in polite company, much less in street demonstrations or on college campuses. Today, this once technical concept has become a conceptual battlefield.

Only recently, however, has it become possible to put this anecdotal consensus to empirical test.

In December 2010, Google launched ngrams, a simple tool for searching its vast repository of digitized books and charting the frequency of specific terms over time. (It controls for the fact that there are many more books being published today.)

If you haven’t already played around with this tool to explore your own topics of interest, you should. While you’re at it, take a stab at explaining why writing on the Supreme Court rose steadily until approximately 1935 and has dropped just as steadily ever since!

Back to our topic, though. What does this data reveal about the prominence of intellectual property in published discourse?

I generated two graphs, both charting the terms “intellectual property,” “copyright,” “patent,” and “trademark.” First, the longview:

Relative frequency of IP terms in American English since 1800

Since 1800, patents have been a far more popular topic of conversation and study than trademark and copyright law. Perhaps not surprisingly, given the persistent popular interest in science and invention.

References to patents peaked quite dramatically in 1890. (The exact date can be pinpointed if you remove smoothing from the graph, visit here to manipulate it yourself.) This pique/peak of interest coincides with the founding of General Electric (based on Thomas Edison’s lightbulb patents), the passage of the Sherman Antitrust Act, and the 100th anniversary of the first US patent statute.

For much of these two centuries, reference to “intellectual property” – the conceptual grouping of patents, trademarks, and copyrights taken so much for granted today – was virtually nonexistent. That really changes only in the past few decades. Here’s the view since 1960:

Relative frequency of IP terms in American English since 1960

A few changes stand out over these five decades. Patents finally lose their position of prominence as the American public takes increasing interest in copyright. Not surprisingly, this coincides with the emergence of the Internet.

Ayn Rand

The more dramatic shift, however, is the change in fortunes of the term “intellectual property.” What we’re seeing here is the invention of a new concept. People had long written about patents, copyrights, and trademarks. But the idea of “intellectual property” was a new one.

One of its earliest appearances is a 1967 Ayn Rand piece (Alan Greenspan is listed as an editor). Rand sought to dispel the traditional conception of patents and copyrights as privileges granted by the government, positioning them instead as quintessential examples of property.

The remarkable success of this idea – in culture and in the law – is self-evident today.

Compared to the last 200 years, the last fifty reveal the dramatically increasing importance of copyright and trademark in public conversation. (If the public is perhaps less interested in patents today than a century ago, interest in securing them certainly continues to rise.)

Even more important than the rising importance of these individual legal terms, a new concept has emerged that underlies their moral justification, empirical study, and legal regulation. That change is what defines the Age of IP.

This idea not only opens the conversation in Kapczynski and Krikorian’s book, but underlies the very concept of the project, as underscored by the title.

The editors and contributors refuse the historically naive view that would take the concept of “intellectual property” as a given. Instead, the contributions situate IP historically, as a contested concept that various social movements seek to destabilize.

One last graph. This one uses the rising use of “intellectual property” since 1960 as a baseline to plot increasing interest in the terminology of the A2K movement: words like “public domain,” “open access,” “fair use,” and of course, “access to knowledge.”

Relative frequency of A2K terms since 1960

One way to interpret this graph is as suggesting that the term “access to knowledge” (the royal blue line) is today where the term “intellectual property” (the sky blue line) was in 1975.

Unfortunately, Google’s ngram only makes available data up to 2008. Kapczynski and Krikorian’s Access to Knowledge in the Age of Intellectual Property doesn’t yet show up on this chart. You can download the full text for free, however, from Zone Books and MIT Press.

(Also missing from the chart is Access to Knowledge in Egypt, published in 2010, thanks to Bloomsbury Academic and my incredible coeditor Nagla Rizk. “Mabrouk!” Nagla, on rejoining the Internet today. I’ll keep following your updates on the Egyptian revolution via Twitter.)

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the [...]]]> The now defunct version of the Google Book Class Action Settlement is a complicated document consisting of 141 pages, 160 definitions, 17 separate articles and 116 separate clauses, not including the substantial provisions contained within the 15 attachments where several important features of the deal were buried.

The initial draft of the agreement dates back to October 28, 2008, when Google announced that it had reached a settlement of the highly publicized class-action lawsuit brought by the Authors Guild and another equally important lawsuit brought by the American Association of Publishers.

Opposition from various quarters caused the parties to reconsider the details of the settlement and a new version is due on Monday November 9, 2009. In my recent article I compared the settlement to the most likely outcome of the litigation the settlement resolves. In this post I speculate about the contents of the revised agreement.

The essential features of the old settlement agreement were:

• Money. Google made some pretty significant financial concessions, including one-time payments of over $100 million dollars and a revenue sharing agreement.

• Digitization, Indexing & Search. In return for these concessions Google received the right to continue to operate its book search engine, substantially in its current form which is arguably consistent with copyright law’s fair use doctrine.

• Commodification. The settlement also gave Google the ability to explore new revenue possibilities in cooperation with authors and publishers. The highlights consisted of extensive book previews, consumer e-book purchases, institutional subscriptions to the entire Google Book database and various other “New Revenue Opportunities”.

• New institutional arrangements. Beyond the mechanics of the agreement itself, the key elements of the new Google Book universe were to be the “Book Rights Registry” and the “Author-Publisher Procedures”. Although the Registry received more attention from critics of the settlement, the Author-Publisher Procedures appeared to be the key vulnerability from a class-action fairness perspective. These procedures determine who controls the exploitation of a work within the Google Book universe and who benefits from that exploitation. In many cases the Author-Publisher Procedures act like a standard form publishing contract that supersedes deals negotiated before the importance of digital rights was widely realized.

• Orphan works exploitation. The treatment of orphan works pervades all aspects of the current Settlement agreement. The agreement increased public access to orphan works by presumptively including almost all works in most commercially significant uses. Orphan works could be digitized, indexed, made available for partial-previews, sold as consumer purchases and incorporated into institutional subscriptions. As well as benefiting Google, revenues attributable to these uses will flow in part to the Registry, and to registered authors and publishers.

• Orphan works monopoly. In its current form the Settlement only solves the orphan works problem for Google.

What should we expect on Monday?

The most desirable change from an antitrust perspective would be to allow Google’s competitors to exploit orphan works on the same terms as Google. The problem with this solution is that it further strains the boundaries of class action law and looks more and more like private legislation. This should not, in my view, be enough to derail the deal if the parties can show that all of the relevant sub-class interests were adequately represented.

The Author-Publisher Procedures enhance the coordinating function of the Settlement by streamlining the incorporation of existing author-publisher contractual terms into the framework of the Google Book universe. However, where an existing author-publisher contract gives both parties some control over electronic exploitation, or simply fails to make any provision for electronic rights, the Author-Publisher Procedures effectively overwrite those contracts. These new terms do not appear to systematically disadvantage either authors or publishers, but they strike me as a one size fits all solution that could be substantially improved upon.

Finally, I expect the revenue sharing aspects of the deal to become more complicated.

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of [...]]]> Should we fear Google? This question, unthinkable ten, maybe even five, years ago, seems to dominate internet policy discussion today. AT&T is afraid of Google Voice. Apple might be afraid of the Google Phone. Microsoft is afraid that Google Apps will make its Office suit redundant. These fears are justified, but they are also good. In most cases Googlephobia is a condition suffered by competitors. Google will probably kill off some competitors, but it will force many more to continue to innovate and provide better products to the consumer at lower prices. So, yes, some people should fear Google. But should we the public?

“Fear is often preceded by astonishment, and is so far akin to it, that both lead to the senses of sight and hearing being instantly aroused. In both cases the eyes and mouth are widely opened, and the eyebrows raised.” Charles Darwin, The Expression of the Emotions in Man and Animals.

In its pre-settlement incarnation, the Google Book Search (GBS) project was merely an astonishing attempt to build a comprehensive search engine to allow full text searching inside millions of books. The GBS envisaged in the Settlement (before the DOJ sent the parties back to the drawing-board) was much more ambitious. Not satisfied with digitization, indexing and limited display of books consistent with copyright law’s fair use doctrine, Google, the Authors Guild and a handful of publishers struck a deal which allowed for the commoditization of digital books as direct substitutes for paper copies. Subject to an opt-out and a few other exclusions, the Settlement swept in almost all books subject to U.S. copyrights and established an entirely new institutional framework for clearing digital book rights.

My personal view is that justified astonishment at the GBS Settlement has, in too many cases, given way to unjustified fear. Google is still far from being the new Microsoft as the Department of Justice’s Christine Varney has asserted. It certainly does not act like it. Google’s track record of openness and innovation are heartening and there is very little evidence so far that they plan on abandoning their “don’t be evil” corporate culture.

Googlephobia appears to be the foundation of some pretty wild assertions in the context of the Google Book dispute in particular. Google conceives that it is set to liberate out-of-print books from their dusty dungeons on the relatively inaccessible shelves of the worlds great libraries. Critics of the deal (and the initial more modest GBS) see plans for monopolization of hitherto non-existent markets, the destruction of libraries, universities and even the book itself.

The Google Book Settlement was not perfect, but my own fear is that Googlephobia and the intervention of the Department of Justice have left us worse off than we would have otherwise been. The Google skeptics are right about a number of the Settlement’s shortcomings, but now that the parties renegotiating the deal we had all better hope that GBS version 3 is better, fairer, and more accessible — not just smaller and less ambitious.

It might be naive to simply trust in Google, but the fear Google now inspires seems equally misplaced.

Excellent multitasking, folks. In future DMCA smackdowns, Cory will cure cancer, save the rainforest, and abolish the designated hitter rule.

(Image: Wikicommons)

Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and [...]]]> So I had my iTunes open and on shuffle yesterday when Monty Python’s “Finland” came on. That was what prompted me to check YouTube for Python offerings. Now the Python chaps have offered their own channel. This video has the usual Python cheek as they talk about YouTube, being ripped off, and the open plea that viewers buy the products after they enjoy them. The clip also touts the troop’s interest in showing the clips as they wanted them to be shown and in high quality.

Fun stuff but here is the problem. The Monty Python Channel has nowhere near the quantity of Python material one can find elsewhere on YouTube. I wonder whether the Python folks chose to leave the other posters alone and offer what they see as the best or most in demand clips in a branded area. Then again, they may have decided to go after the other posters too. And to think this train of thought all started in Finland. Finland? Yes, because I could take a CD, put into MP3 format, and listen to “Finland” as a shuffle tune. But wait. There’s more! The devil you say. No, really.

Check out the clip for Finland below. It is a good quality stream of the music. It is funny and adds a fair amount of creativity. It attributes the visual work and the software to make the work. It also acknowledges Python as the source of the music. In addition, it has embedded ads to allow a viewer to buy the song from iTunes or Amazon. Now given all the new works, Python’s failure to offer a similar video (even if they did the video is a new work albeit one needing the song to make much sense), AND the ads is it fair use? After all YouTube and the poster probably take a cut, as would the seller, but as the Python folks acknowledge they too are giving access to and enjoyment of their clips away for free with the plea that people buy their work. As my essay Individual Branding: How the Rise of Individual Creation and Distribution of Cultural Products Confuses the Intellectual Property System argues these facts present confusing situations for intellectual property. Sharing, attribution, some control, encouraging purchases, remixing, and more can all be seen in my encounter with Finland which may be my new personal metaphor for IP. Watch the video and tell me what you think, fair use, attribution, new work, infringement, all of the above?