"Forget Mickey Mouse," Lawrence Lessig told an admiring crowd at a reception after the Supreme Court arguments in Eldred v. Ashcroft. "The real opportunity is what Brewster is working on, what Eldred is working on. The opportunity is to take material and give it back to our culture."
"Eldred," of course, is Eric Eldred, publisher of Eldritch Press and lead plaintiff in the case. "Brewster" is Brewster Kahle, director of the Internet Archive, and inventor of the Internet Bookmobile, a high-tech version of those buses with bookshelves that used to come visit your school in the second grade.
From September 30 until the big day on October 9, I traveled across the country with Brewster, his eight-year-old son Caslon and two other friends from San Francisco. Loaded in the back of the Bookmobile were an HP duplexing color printer, a couple of laptops, a desktop binding machine, and a paper cutter. On top was a MotoSat dish with Internet connection. We drove from San Francisco to Washington, D.C.--stopping at schools in East Palo Alto, California, Salt Lake City, Baltimore, and Washington; the Carnegie Library in Pittsburgh; and the Great American Bookmobile Conference in Columbus, Ohio--taking ASCII text versions of public domain works available online and turning them into books. When the Bookmobile shows up at a school, kids get to operate the paper cutter to make books, each classroom gets a few books to keep, and everyone gets a lesson in the applications of the public domain.
While it wasn't always clear to the public what we were up to exactly--were we selling books? selling the equipment?--eventually the point crystallized: the Bookmobile is a demo of a public domain application. It addresses the basic question: What good is the public domain?
Free Culture: Lawrence Lessig Keynote from OSCON 2002 -- In his keynote address to a packed house at OSCON 2002, Lawrence Lessig challenges the open source audience to get more involved in the political process. Read the complete transcript of Lawrence's keynote presentation made on July 24, 2002.
One of the government's main arguments in Eldred--since they couldn't argue that extending copyrights retroactively stimulates creativity--was that work is more likely to be disseminated if a publisher or a studio has a commercial interest in distributing it. This is false in theory: How many people have seen "Steamboat Willie," Mickey Mouse's first film, which would have gone into the public domain if Sonny Bono hadn't intervened? How many would see it if it were freely available to be digitized and downloaded from Kazaa?
But the Bookmobile shows that the proposition is false in fact. The Bookmobile's message, in essence, is that these are books we can put in the hands of children, through schools, and we can do it at a very low cost. (The material cost for a black and white book with color cover is $1.) We can create large-print versions of these books and put them in the hands of senior citizens, and we can deliver them to their homes or to retirement centers. We can transform libraries into public-domain printing plants. And we can enable commercial publishers to create new products that attract new customers, both young and old.
Two things are required for these possibilities to be realized:
A rich public domain. Either the 1998 law must be overturned, or Congress must be convinced to repeal the law on its own. Failing a full-scale repeal, the retroactive clause (the part that extends Mickey Mouse's copyright, as opposed to the copyright on works not yet created) must be removed. This is not only because the current law outrageously denies hundreds of thousands of works to the public, but also because failure to overturn means that Congress is free to extend copyrights whenever it wants, and the words of the Constitution's framers--"limited terms"--are directly contradicted.
Putting the public domain online. Everything in the public domain must go on the Net. All of it. This is the single biggest action individuals can take. Find public domain materials, get them scanned and upload them to the Archive Web site. The Internet Archive is offering unlimited storage and unlimited bandwidth for this purpose.
It's not at all clear that the Supreme Court will overturn. The case is "in trouble," Charles Nesson of the Berkman Center for Internet and Society at Harvard opined at a post-hearing reception on Capitol Hill. The trouble largely stems from the question of the massive rewrite of the Copyright Act in 1976, which extended copyright terms to lifetime of the author plus 50 years. How can the 1998 law be unconstitutional but the 1976 law just fine? Speaking at the reception, sponsored by Public Knowledge, Lessig based his hopes on faith that the Court would be as "creative" in its logic here as they have been in the past.
Still, Lessig is confident about the case. "I am obviously extremely happy with where we are," he writes in his Weblog. "The Court is struggling with the right issue; they are motivated to get the right answer; they have a clear and simple way to give the right answer; the government has made it very hard to accept its answer. It is always hard to get the Court to strike a law of Congress, but this law is so universally flawed, and the case against it is so universally strong, that I continue to be confident that the Court could choose to strike the law."
Whatever happens in the case, Lessig claimed victory for the cause, since "four years ago people told me I was insane to bring this case, not because it was without merits but because no one got it--not the press, not the public, certainly not the politicians." What happened in the Supreme Court argument, Lessig said, was that the Court showed they "got it." As Justice Sandra Day O'Connor said, "It is hard to understand how, if the overall purpose of the Copyright Clause is to encourage creative work, how some retroactive extension could possibly do that. One wonders what was in the minds of Congress."
The public gets it, too. As we traveled the country and talked to people about the public domain, no one--not one single person--disagreed with this premise that more, not fewer, books should be in the public domain, and sooner rather than later. Not one single person in Utah or Ohio, Washington or California, said, "You're wrong--it's important for artists to enrich their heirs for another 20 years." No one said, "I think publishers and studios should be able to make money forever on their creations." No one said, "I couldn't care less if thousands of works are kept out of students' hands, so long as Disney gets to keep control of its movies forever."
Even the press gets it. After the argument, The New York Times editorialized: "The purpose of the 1998 Congressional extension was not protecting artists, but enriching media companies that hold property rights in their creations, virtually in perpetuity. The founders did not envision copyright being put to this use, and the Supreme Court should not allow it." A Washington Post editorial doubted the Court could overturn the law with legitimacy, but agreed that the law is atrocious policy: "At some point, serial and retroactive extensions of "limited times" render copyright protection unlimited. And it seems wrong for Congress to be able to circumvent what would clearly be unconstitutional--granting indefinite copyright protection--by simply extending protection incrementally every few years."
Regardless of the Court's decision, or public or press opinion on the matter, there still exists a public domain and it is effectively available to the public only to the degree that it is online. As Brewster says: "Never mind about the stuff that's still under copyright. If we can't get the public domain online, we don't deserve to get the other stuff." The Bookmobile was Brewster's attempt to show some of the public domain is online and to demonstrate an application of what can be done with it. But it is only a demo. The real payoff comes when mature institutions in critical positions take the public domain and run with it. Let's look at libraries, schools, and the commercial sector. In conclusion, we'll talk about what the government's responsibility is here.
The bookmobile metaphor is designed to address the library world. To librarians, it says, you can do better. At the bookmobile conference in Columbus, vendors showed off $300,000 bookmobiles with fine oak bookshelves, computer stations, even mobile satellite dishes. Parked far from these budget-breakers, the Internet Bookmobile costs $15,000 tops, plus the cost of a minivan (the Aerostar was bought from a used car lot for under $4,000). To librarians, the Internet Bookmobile says, with a rich public domain, the Net, and inexpensive desktop equipment, you can wildly improve the quality of the services you offer. You can change libraries from expensive buildings with huge storage and retrieval costs, to a place where books are stored online and printed as desired. Libraries can become a place where books are custom-made.
Even more radically, the Bookmobile says, why should libraries buy copies of public-domain works from publishers when they should be freely available online, and paperback copies can be created for $1. In point of fact, why should libraries lend public domain works at all, when they can just give them away?
Beyond all this, librarians can use the Net as a storage facility for special collections, which are not necessarily in book form. A librarian I met in Columbus, for example, explained that her library in rural Pennsylvania is well known for its genealogy collection, with patrons from around the world coming to research their families. A few days before we talked, someone had come in with several boxes of Grange records found in an attic. With such a collection digitized and online, the library improves preservation, increases access, decreases storage and maintenance costs, and frees librarians from spending time retrieving papers.
Even so, not all librarians are embracing the Internet wholeheartedly. The Library of Congress has received $100 million for digital preservation but few works have been digitized. And Michael Hart, creator of Project Gutenberg, tells a story about a meeting he had scheduled with a local librarian to give him a CD of Gutenberg texts. The librarian wasn't available so his assistant met Hart. When Michael told her, "I'm just dropping these books off for him," and handed her the CD, "She went completely ashen. Her eyes had the look of a deer caught in headlights. That's a look I had never seen before and I've never seen since."
Libraries have the budgets and they have the mission to support the digital future, but do they have the will?
The opportunities at schools are huge. Schools are strapped by budget constraints and dependent on school districts and state boards to provide one-size-fits-all texts. Public schools could benefit immensely from being able to create books for their students.
Consider what happens when Digital Village put laptops in the hands of fourth to eighth graders at the Belle Haven School in East Palo Alto, California. According to the Digital Village project coordinator, computers in the homes result in increased parent-child interaction, increased focus in the classroom, more time spent reading (on screen), increased computer literacy among parents, and a sense among children of their place in larger world, as opposed to their local community.
What impact would putting books as well as computers into students' homes have? One can imagine increased literacy for both kids and adults (adults in inner-city Baltimore read at the fifth-grade level), more parent-child interaction as kids and parents read to each other, and of course, more success in schools as kids more willingly read their own books rather than assigned textbooks or library books they must return--if they can even find books they want to read in the under-financed schools and public libraries (a teacher in Salt Lake who previously worked in poor Chicago neighborhoods told me the public libraries' shelves there were simply bare; the high school we visited in Washington D.C. didn't even have a library).
Technology is cool, but books are not, right? Yet, when the Bookmobile pulled into the school playground, all the kids wanted books, wanted the low-tech thrill of pulling a paper cutter blade, and were thrilled by the simple activity of folding a piece of paper into a little eight-fold booklet. They were thrilled to have the same books that were no doubt gathering dust in the school library.
Schools can implement this technology for a small upfront investment and incidental costs. And the process of creating books can itself be turned into an educational experience for older children. Schools--especially underfunded inner-city schools--are miserably failing our children. They are growing up illiterate, unaware of their potential and their possibilities. Actively exploiting the public domain in the ways the Bookmobile suggests can radically change this.
A few presses, such as Dover Books (the clip-art publisher) and Modern Library, have for many years made strong publishing businesses from the public domain. (O'Reilly's signature book covers of animal woodcuts originally came from Dover Books.) But what commercial opportunities does the Bookmobile concept present?
How about packaging the equipment Brewster culled together into a print-on-demand solution? Consider the words of one participant on the Archive's forums: "I would put out the money in a heartbeat, but don't really have a lot of time to spend learning how to set this all up. I live in a small town in Tennessee, and think it would be a wonderful community service."
Imagine not only schools and libraries buying such a solution but also Kinko's and Barnes & Noble. A few people we talked to were so turned on by the idea of creating their own books, they were talking about buying their own printer/binder/cutter setups. Imagine being able to go into Kinko's to print and bind your book, or finding an old gem in a bookstore and scanning, printing, and binding it as a gift for friends. Imagine B&N turning its own imprint of the classics into a print-on-demand service.
Strange to think about, when the debate is often positioned as Silicon Valley versus Hollywood, but Hollywood can be one of the greatest promoters of the public domain by turning public-domain properties into valuable commercial properties. Since The Secret Garden enter the public domain in 1986, more than a dozen properties have been created, including TV movies, books, audio books, and plays, according to Arizona State law professor Dennis Karjala.
Obviously, government is part of the problem, since it was Congress that passed the 1998 law that locked so many works out of the public domain. But there are many aspects of government. The National Science Foundation has given Carnegie Mellon $500,000 for its Million Book Project. They could give many more grants, not only for the MBP, but also to library science programs, to the study of improvements in OCR technology, and so forth.
The Library of Congress can put the digitizing of public-domain works on the fast track.
The Education Department and state Boards of Education can buy the Bookmobile's print-on-demand system and place it in schools, much as what happened with putting the Internet in the schools.
The Archive is donating unlimited storage space for the digital public-domain library. Surely the government can at least match that commitment.
I'm sure other government employees and those who follow government closer than I do can think of additional government programs that could help speed up the digitization of the public domain.
As I've said here, the Bookmobile is a demo of a public domain application. Traveling "on the bus" has brought to my mind a few ideas for other demonstrable applications. It has also made clear that it is critical to get from "demo" to "shipping product." We should turn not only minivans but also schools, libraries, homes, print shops, and bookstores into book publishing and book scanning operations. In this way the value of the public domain becomes tangible and improved. The more that people actually use public domain works, the more likely they are to contribute to it, and to fight for it.
Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.
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