In re Books

James Grimmelmann -- December 10th, 2012

On October 26 and 27—yes, just before Hurricane Sandy—New York Law School hosted In re Books, a “conference on law and the future of books.” A loose spiritual sequel to our 2009 conference on the Google Books settlement, D is for Digitize, In re Books was designed to bring together authors, publishers, librarians, scholars, and readers to think deeply about the challenges facing books in a digital age, and how law can help face those challenges. I’m happy to report that, following some post-Sandy cleanup, full video of the conference is now available online. (We will have downloadable versions ready soon.)

In my opening remarks, I tried to set a tone of good will for the conference:

We here in this room are joined by a common love of books. We are authors, publishers, literary agents, librarians, archivists, scholars and especially all of us are readers. And we are gathered together in a law school, for of all the professions, it is the lawyers who are the most devoted to the written word. Our task is to consider the future of books and law in a digital age. We stand at the crossroads of legal code, computer code, and the codex.

The legal system for books we have today is essentially the same one developed three hundred years ago to make cultural and economic sense out of the rise of a transformative media technology: the printing press. Today, we are living through—we are creating—another, equally transformative media technology: the computer. We are, I submit, still in the in incunabulum age of the digital book; the basic technology is clearly established, but the social outlines of what digital books will become are not. Determining the most appropriate laws to go along with them—whether it be the next iteration of copyright, or the Worshipful Company of Kickstarters, or the Deposit Library of Babel, or the inalienable moral right to have your wiki revisions properly attributed—we will not today or tomorrow finish the task, but we can perhaps help to advance it. …

It is early in the morning of the next age of books. Let us welcome in the day and see what it will bring.

Here are a few of my personal highlights from the program:

The sociologist John Thompson (at 4:05) gave a particularly thrilling presentation. Thompson is the author of Merchants of Culture, a detailed study of how contemporary trade publishing works (and sometimes doesn’t work) based on interviews with dozens of insiders. His talk was a relentless analysis of the economic logic of the industry, particularly the growth of bottom-line-driven “extreme publishing” and the painful financial squeeze in which publishing houses find themselves. If you are seriously interested in the publishing industry and its future, watch his talk. There is no better use of a half hour of your time.

At times, the room seemed to be divided between publishing insiders and outsiders, each rolling their eyes at the others’ ignorance. Thompson broke through the cultural disconnect, bringing a scholar’s rigor to the rich tacit knowledge of publishing professionals. These moments of mutual understanding are hard-won, but essential.

One running theme of the conference was the question of whether this historical moment is special. Is the digital transition a unique and epochal shift, or have we been here before? Ariel Katz (at 43:30) gave the latter answer, drawing out some surprising parallels between today’s agency-pricing disputes and similar controversies a century ago. Then, as now, publishers faced a massive retailer determined to drive the price of popular books down to ruinously low levels; then, as now, they tried to hold the line on the prices that could be charged to readers; then, as now, the courts stepped in on the side of the massive retailer. Macy’s was the Amazon of the early 20th century. Katz’s talk brought out the parallel and gave it a twist ending: publishers’ biggest pricing enemies are … their future selves.

Another running theme was the question of whether the publishing industry is like Passover: different from all other industries. Talking about the agency-pricing lawsuits, Chris Sagers (at 30:30), explained that most antitrust defendants argue that their industry is special and should be exempted from the usual rules of antitrust law, and most of them are wrong. As he put it, “The agency model—we used to just call it price-fixing.” But Author and Authors Guild board member James Gleick (at 35:40) offered an elegant, erudite and quietly impassioned defense of a different and higher cultural ideal for books in his remarks on the final panel.

Other panelists reflected on the digital transition in publishing in ways that brought out both the continuities and the breaks with the past. Matthew Sag’s (at 17:20) discussion of the digital humantities and Valerie Navarro’s (at 49:07) discussion of reader privacy were mirror images: both reflected on what happens when books are surrounded by a cloud of digital data, but Sag pointed out the promise and Navarro pointed out the peril. Stuart Shieber (at 1:08:30), talking about the technological capabilities of different media, reached the paradoxical conclusion that e-readers are better than books, but that books are better than e-books.

A trio of panelists gave deeply humane perspectives on the diversity of readers and the missions of the institutions that served them. Author Caleb Crain (at 12:30) gave a scholar’s defense of the research library as a safehouse for printed books. Rural librarian Jessamyn West (at 36:35) offered a view of the digital divide from deep inside the chasm. And attorney Daniel Goldstein (at 32:35), fresh off his win in the HathiTrust lawsuit, told the surprising history of accessibility and e-book: the blind and print-disabled were able to drive the development of technologies with profound payoffs for the sighted, as well.

Unsurprisingly, orphan works problems and solutions, and problems with the solutions, and solutions to the problems with the solutions, and so on, were a major theme of the conference. Microsoft’s Jule Sigall (at 43:40) gave a masterful taxonomy of the numerous directions in which orphan works efforts could go. Some, like the Copyright Clearance Center’s Roy Kaufman (at 10:00) were optimistic about collective licensing solutions; others, like Matthew Sag and Pamela Samuelson (at 30:10) were far more skeptical.

And finally, even in the face of the tremendous legal and practical challenges facing the world of books, the conference generally had an optimistic tone. One reason may have been the number of speakers who detailed their work actually fixing things. Jessamyn West’s tales from the trenches were, after all, stories of making a difference in patrons’ lives by empowering them, offline and online. Tulane’s Elizabeth Townsend Gard (at 32:30) described her work on the Durationator, a project to bring clarity to the all-too-messy world of determining whether a book is in or out of copyright. And Eric Hellman (at 43:40) talked about, a Kickstarter-like startup that releases books under Creative Commons licenses by crowdfunding the money to buy the rights from the authors.

As for the last word on a conference full of words about objects full of words, I will leave that to Chaucer. (In keeping with the spirit of the conference, the text is taken from the Project Gutenberg electronic version of the Canterbury Tales).

For him was lever have at his bed’s head
Twenty bookes, clothed in black or red,
Of Aristotle, and his philosophy,
Than robes rich, or fiddle, or psalt’ry.
But all be that he was a philosopher,
Yet hadde he but little gold in coffer,
But all that he might of his friendes hent,
On bookes and on learning he it spent,
And busily gan for the soules pray
Of them that gave him wherewith to scholay
Of study took he moste care and heed.
Not one word spake he more than was need;
And that was said in form and reverence,
And short and quick, and full of high sentence.
Sounding in moral virtue was his speech,
And gladly would he learn, and gladly teach.

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