Tech Revolutionaries: The Arab Revolt shows that Google's and Twitter's corporate values are better than Facebook's.
By Jacob Weisberg
Slate
American technology companies have often faced tricky issues about how they operate in relation to authoritarian regimes in China, Russia, and elsewhere. But as revolution sweeps through the Middle East, three companies have found themselves central to the action in an unprecedented way. Google, Facebook, and Twitter are all confronting the kind of moral and political dilemmas that global corporations usually hope to avoid. Their differing reactions tell us a lot about their corporate values—in a deeper sense than that issue is usually talked about.
Google's response has been the most exemplary. From its earliest days, Google has asserted an unusual claim to ethical behavior—its slogan is "Don't Be Evil." The company has, on occasion, shown itself willing to forgo profits and take risks that others wouldn't to avoid violating its own principles. The best previous example was China, where Google pulled out of the search engine market instead of continuing to accede to government demands for censorship of results. There's a biographical explanation for this kind of corporate policy decision. The company's co-founder Sergey Brin's experience as a child of Jewish refuseniks living under Soviet tyranny has influenced the company's behavior.
In Egypt, Google went even further than it did in China by directly opposing an oppressive government. There has been no suggestion that Google authorized or encouraged Wael Ghonim to foster a revolution there. But, amazingly, Google did not distance itself from one of its executives trying to overthrow the Mubarak regime in his spare time. Google's CEO, Eric Schmidt, said recently that he was "very proud" of Ghonim, and the company has made clear that it would welcome him back to his old job. This was not all Google did. When Mubarak cut off Internet access, the company developed a workaround that allowed users to send Twitter messages over phone lines. YouTube, which Google owns, also created a hub to promote videos from protestors in Tahrir Square. This sort of activism has provoked Glenn Beck—and the Russian government—to charge Google with being in league with the Obama administration in supporting Egyptian revolution. In fact, Google has walked a fine line on this point, providing tools to help undermine tyranny without directly embracing any particular group of revolutionaries.
You can contrast this response with that of Facebook. Facebook's platform played the bigger role in Hosni Mubarak's downfall. It was the "We Are All Khaled Said" page Ghonim set up in June to memorialize a businessman who died in police custody that became the cradle of the revolution. But Facebook the company, unlike Google, has hardly embraced the honor. Last fall, it removed the crucial page rather than allowing the administrator to protect his identity. Sen. Richard Durbin of Illinois sent Facebook a letter requesting that it amend to its no-anonymity policy to protect democratic activists in the Middle East. Facebook said no. When the Tunisian government used a virus to obtain passwords of activists, Facebook couched its response in terms of protecting user privacy, not challenging a vile regime.
Facebook is such a powerful organizing tool that the question of its attitude toward those who use its product is in some ways irrelevant. But it is worth pointing that the company has never shown any sign of having the kind of core commitment to liberty that Google does. Where Google voluntary pulled out of China, Facebook—which is blocked there—is desperate to get in. This, too, reflects the background and worldview of its founder. Mark Zuckerberg, a child of privilege, has never known a lack of political freedom. He has no obvious ideological leanings and his big outside investors include a radical libertarian and a junior oligarch. It is difficult to imagine Facebook—or most other technology companies, for that matter—passing up a major business opportunity because of concerns about human rights. Facebook's overriding objective is the much more typical one of expanding its market while avoiding bad PR and staying out of trouble with governments that set the rules.
To Read the Rest of the Essay
Showing posts with label Google. Show all posts
Showing posts with label Google. Show all posts
Thursday, February 24, 2011
Friday, February 11, 2011
John Bussey: How to Handle Employee Activism
How to Handle Employee Activism: Google Tiptoes Around Cairo's Hero
by John Bussey
Wall Street Journal
As the world marveled this week at the remarkable story of Wael Ghonim, the Google manager who helped organize a popular rebellion in Egypt, a great sigh of relief could be heard rising from much of the rest of American business:
"I'm glad," came the exhale, "the guy doesn't work for us."
Who wasn't amazed at the power Mr. Ghonim wielded against the authoritarian regime of Hosni Mubarak? An Internet geek and Google's Mideast regional marketing executive, Mr. Ghonim helped administer a group of Web pages that served as a rallying point for activists long before crowds gathered in Tahrir Square. He was detained by the police, made a martyr in the streets, and then released. A popular hero was born.
A lot of U.S. companies, which now manage millions of employees abroad, watched with trepidation. Many of them now earn more abroad than they do in America. And much of that income comes from the sale of big-ticket items—power systems, infrastructure equipment, aircraft, telecommunications—that only governments can afford to buy.
Companies may not want to be lapdogs to dictators. But they also don't want to tick off their chief customer. It's a balancing act, one that inevitably leads to a policy of corporate discretion: Best to stay off the radar screen.
Reflecting on Mr. Ghonim's extracurricular activities, an executive at one big U.S. manufacturer operating abroad was adamant: "Anything that affects the brand – we hate that," he said. "It wouldn't be allowed." Mr. Ghonim can be admired for his considerable contribution to civil liberties in Egypt, but also shunned as too great a liability to business.
Of course, that's exactly the sort of traditionalism the Google culture, and much of Silicon Valley, rebels against. Google, after all, is the company whose corporate motto is "Don't be evil" and whose co-founder, Sergey Brin, pulled operations from China because the country was censoring Google searches.
To Read the Rest of the Article
by John Bussey
Wall Street Journal
As the world marveled this week at the remarkable story of Wael Ghonim, the Google manager who helped organize a popular rebellion in Egypt, a great sigh of relief could be heard rising from much of the rest of American business:
"I'm glad," came the exhale, "the guy doesn't work for us."
Who wasn't amazed at the power Mr. Ghonim wielded against the authoritarian regime of Hosni Mubarak? An Internet geek and Google's Mideast regional marketing executive, Mr. Ghonim helped administer a group of Web pages that served as a rallying point for activists long before crowds gathered in Tahrir Square. He was detained by the police, made a martyr in the streets, and then released. A popular hero was born.
A lot of U.S. companies, which now manage millions of employees abroad, watched with trepidation. Many of them now earn more abroad than they do in America. And much of that income comes from the sale of big-ticket items—power systems, infrastructure equipment, aircraft, telecommunications—that only governments can afford to buy.
Companies may not want to be lapdogs to dictators. But they also don't want to tick off their chief customer. It's a balancing act, one that inevitably leads to a policy of corporate discretion: Best to stay off the radar screen.
Reflecting on Mr. Ghonim's extracurricular activities, an executive at one big U.S. manufacturer operating abroad was adamant: "Anything that affects the brand – we hate that," he said. "It wouldn't be allowed." Mr. Ghonim can be admired for his considerable contribution to civil liberties in Egypt, but also shunned as too great a liability to business.
Of course, that's exactly the sort of traditionalism the Google culture, and much of Silicon Valley, rebels against. Google, after all, is the company whose corporate motto is "Don't be evil" and whose co-founder, Sergey Brin, pulled operations from China because the country was censoring Google searches.
To Read the Rest of the Article
Thursday, December 09, 2010
Robert Darnton: The Library -- Three Jermiads
The Library: Three Jeremiads
Robert Darnton
The New York Review of Books
...
Google represents the ultimate in business plans. By controlling access to information, it has made billions, which it is now investing in the control of the information itself. What began as Google Book Search is therefore becoming the largest library and book business in the world. Like all commercial enterprises, Google’s primary responsibility is to make money for its shareholders. Libraries exist to get books to readers—books and other forms of knowledge and entertainment, provided for free. The fundamental incompatibility of purpose between libraries and Google Book Search might be mitigated if Google could offer libraries access to its digitized database of books on reasonable terms. But the terms are embodied in a 368-page document known as the “settlement,” which is meant to resolve another conflict: the suit brought against Google by authors and publishers for alleged infringement of their copyrights.
Despite its enormous complexity, the settlement comes down to an agreement about how to divide a pie—the profits to be produced by Google Book Search: 37 percent will go to Google, 63 percent to the authors and publishers. And the libraries? They are not partners to the agreement, but many of them have provided, free of charge, the books that Google has digitized. They are being asked to buy back access to those books along with those of their sister libraries, in digitized form, for an “institutional subscription” price, which could escalate as disastrously as the price of journals. The subscription price will be set by a Book Rights Registry, which will represent the authors and publishers who have an interest in price increases. Libraries therefore fear what they call “cocaine pricing”—a strategy of beginning at a low rate and then, when customers are hooked, ratcheting up the price as high as it will go.
To become effective, the settlement must be approved by the district court in the Southern Federal District of New York. The Department of Justice has filed two memoranda with the court that raise the possibility, indeed the likelihood, that the settlement could give Google such an advantage over potential competitors as to violate antitrust laws. But the most important issue looming over the legal debate is one of public policy. Do we want to settle copyright questions by private litigation? And do we want to commercialize access to knowledge?
I hope that the answer to those questions will lead to my happy ending: a National Digital Library—or a Digital Public Library of America (DPLA), as some prefer to call it. Google demonstrated the possibility of transforming the intellectual riches of our libraries, books lying inert and underused on shelves, into an electronic database that could be tapped by anyone anywhere at any time. Why not adapt its formula for success to the public good—a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world?
To dismiss this goal as naive or utopian would be to ignore digital projects that have proven their worth and feasibility throughout the last twenty years. All major research libraries have digitized parts of their collections. Since 1995 the Digital Library Federation has worked to combine their catalogues or “metadata” into a general network. More ambitious enterprises such as the Internet Archive, Knowledge Commons, and Public.Resource .Org have attempted digitization on a larger scale. They may be dwarfed by Google, but several countries are now determined to out-Google Google by scanning the entire contents of their national libraries.
In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.
If these countries can create national digital libraries, why can’t the United States? Because of the cost, some would argue. Far more works exist in English than in Dutch or Japanese, and the Library of Congress alone contains 30 million volumes. Estimates of the cost of digitizing one page vary enormously, from ten cents (the figure cited by Brewster Kahle, who has digitized over a million books for the Internet Archive) to ten dollars, depending on the technology and the required quality. But it should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.
The greatest obstacle is legal, not financial. Presumably, the DPLA would exclude books currently being marketed, but it would include millions of books that are out of print yet covered by copyright, especially those published between 1923 and 1964, a period when copyright coverage is most obscure, owing to the proliferation of “orphans”—books whose copyright holders have not been located. Congress would have to pass legislation to protect the DPLA from litigation concerning copyrighted, out-of-print books. The rights holders of those books would have to be compensated, yet many of them, especially among academic authors, might be willing to forgo compensation in order to give their books new life and greater diffusion in digitized form. Several authors protested against the commercial character of Google Book Search and expressed their readiness to make their work available free of charge in memoranda filed with the New York District Court.
Perhaps even Google itself could be enlisted in the cause. It has digitized about two million books in the public domain. It could turn them over to the DPLA as the foundation of a collection that would grow to include more recent books—at first those from the problematic period of 1923–1964, then those made available by their rights holders. Google would lose nothing by this generosity; each digitized book that it made available could, if other donors agree, be identified as a contribution from Google; and it might win admiration for its public-spiritedness.
Even if Google refused to cooperate, a coalition of foundations could provide enough to finance the DPLA, and a coalition of research libraries could provide the books. By working systematically through their holdings, a great collection could be formed. It would conform to the highest standards in its bibliographical apparatus, its scanning, its editorial decisions, and its commitment to preservation for the use of future generations.
Should the Google Book Search agreement not be upheld by the court, its unraveling would come at an extraordinary moment in the development of an information society. We have now reached a period of fluidity, uncertainty, and opportunity. Things have come undone, and they can be put together in new ways, subordinating private profit to the public good and providing everyone with access to a commonwealth of culture.
Would a Digital Public Library of America solve all the other problems—the inflation of journal prices, the economics of scholarly publishing, the unbalanced budgets of libraries, and the barriers to the careers of young scholars? No. Instead, it would open the way to a general transformation of the landscape in what we now call the information society. Rather than better business plans (not that they don’t matter), we need a new ecology, one based on the public good instead of private gain. This may not be a satisfactory conclusion. It’s not an answer to the problem of sustainability. It’s an appeal to change the system.
To Read the Entire Essay
Robert Darnton
The New York Review of Books
...
Google represents the ultimate in business plans. By controlling access to information, it has made billions, which it is now investing in the control of the information itself. What began as Google Book Search is therefore becoming the largest library and book business in the world. Like all commercial enterprises, Google’s primary responsibility is to make money for its shareholders. Libraries exist to get books to readers—books and other forms of knowledge and entertainment, provided for free. The fundamental incompatibility of purpose between libraries and Google Book Search might be mitigated if Google could offer libraries access to its digitized database of books on reasonable terms. But the terms are embodied in a 368-page document known as the “settlement,” which is meant to resolve another conflict: the suit brought against Google by authors and publishers for alleged infringement of their copyrights.
Despite its enormous complexity, the settlement comes down to an agreement about how to divide a pie—the profits to be produced by Google Book Search: 37 percent will go to Google, 63 percent to the authors and publishers. And the libraries? They are not partners to the agreement, but many of them have provided, free of charge, the books that Google has digitized. They are being asked to buy back access to those books along with those of their sister libraries, in digitized form, for an “institutional subscription” price, which could escalate as disastrously as the price of journals. The subscription price will be set by a Book Rights Registry, which will represent the authors and publishers who have an interest in price increases. Libraries therefore fear what they call “cocaine pricing”—a strategy of beginning at a low rate and then, when customers are hooked, ratcheting up the price as high as it will go.
To become effective, the settlement must be approved by the district court in the Southern Federal District of New York. The Department of Justice has filed two memoranda with the court that raise the possibility, indeed the likelihood, that the settlement could give Google such an advantage over potential competitors as to violate antitrust laws. But the most important issue looming over the legal debate is one of public policy. Do we want to settle copyright questions by private litigation? And do we want to commercialize access to knowledge?
I hope that the answer to those questions will lead to my happy ending: a National Digital Library—or a Digital Public Library of America (DPLA), as some prefer to call it. Google demonstrated the possibility of transforming the intellectual riches of our libraries, books lying inert and underused on shelves, into an electronic database that could be tapped by anyone anywhere at any time. Why not adapt its formula for success to the public good—a digital library composed of virtually all the books in our greatest research libraries available free of charge to the entire citizenry, in fact, to everyone in the world?
To dismiss this goal as naive or utopian would be to ignore digital projects that have proven their worth and feasibility throughout the last twenty years. All major research libraries have digitized parts of their collections. Since 1995 the Digital Library Federation has worked to combine their catalogues or “metadata” into a general network. More ambitious enterprises such as the Internet Archive, Knowledge Commons, and Public.Resource .Org have attempted digitization on a larger scale. They may be dwarfed by Google, but several countries are now determined to out-Google Google by scanning the entire contents of their national libraries.
In December 2009 President Nicolas Sarkozy of France announced that he would make €750 million available for digitizing the French cultural “patrimony.” The National Library of the Netherlands aims to digitize within ten years every Dutch book, newspaper, and periodical produced from 1470 to the present. National libraries in Japan, Australia, Norway, and Finland are digitizing virtually all of their holdings; and Europeana, an effort to coordinate digital collections on an international scale, will have made over ten million objects—from libraries, archives, museums, and audiovisual holdings—freely accessible online by the end of 2010.
If these countries can create national digital libraries, why can’t the United States? Because of the cost, some would argue. Far more works exist in English than in Dutch or Japanese, and the Library of Congress alone contains 30 million volumes. Estimates of the cost of digitizing one page vary enormously, from ten cents (the figure cited by Brewster Kahle, who has digitized over a million books for the Internet Archive) to ten dollars, depending on the technology and the required quality. But it should be possible to digitize everything in the Library of Congress for less than Sarkozy’s €750 million—and the cost could be spread out over a decade.
The greatest obstacle is legal, not financial. Presumably, the DPLA would exclude books currently being marketed, but it would include millions of books that are out of print yet covered by copyright, especially those published between 1923 and 1964, a period when copyright coverage is most obscure, owing to the proliferation of “orphans”—books whose copyright holders have not been located. Congress would have to pass legislation to protect the DPLA from litigation concerning copyrighted, out-of-print books. The rights holders of those books would have to be compensated, yet many of them, especially among academic authors, might be willing to forgo compensation in order to give their books new life and greater diffusion in digitized form. Several authors protested against the commercial character of Google Book Search and expressed their readiness to make their work available free of charge in memoranda filed with the New York District Court.
Perhaps even Google itself could be enlisted in the cause. It has digitized about two million books in the public domain. It could turn them over to the DPLA as the foundation of a collection that would grow to include more recent books—at first those from the problematic period of 1923–1964, then those made available by their rights holders. Google would lose nothing by this generosity; each digitized book that it made available could, if other donors agree, be identified as a contribution from Google; and it might win admiration for its public-spiritedness.
Even if Google refused to cooperate, a coalition of foundations could provide enough to finance the DPLA, and a coalition of research libraries could provide the books. By working systematically through their holdings, a great collection could be formed. It would conform to the highest standards in its bibliographical apparatus, its scanning, its editorial decisions, and its commitment to preservation for the use of future generations.
Should the Google Book Search agreement not be upheld by the court, its unraveling would come at an extraordinary moment in the development of an information society. We have now reached a period of fluidity, uncertainty, and opportunity. Things have come undone, and they can be put together in new ways, subordinating private profit to the public good and providing everyone with access to a commonwealth of culture.
Would a Digital Public Library of America solve all the other problems—the inflation of journal prices, the economics of scholarly publishing, the unbalanced budgets of libraries, and the barriers to the careers of young scholars? No. Instead, it would open the way to a general transformation of the landscape in what we now call the information society. Rather than better business plans (not that they don’t matter), we need a new ecology, one based on the public good instead of private gain. This may not be a satisfactory conclusion. It’s not an answer to the problem of sustainability. It’s an appeal to change the system.
To Read the Entire Essay
Monday, October 18, 2010
Joseph Torres: Google's Evil Plan
Google's Evil Plan
By Joseph Torres
Save the Internet
...
The irony is that, while Google is colluding with Verizon on a deal that would allow for corporate censorship on the Internet, it is also working the State Department to pressure foreign countries to open up their markets to prevent government censorship abroad.
What makes this deal so problematic is that a federal court ruled in April that the Federal Communications Commission (FCC) did not have the authority to regulate the broadband industry. The decision threw out the legal framework adopted by the Bush administration to deregulate the broadband industry, a framework that has resulted in a broadband market dominated by companies like Verizon, Comcast, and AT&T.
At this moment, the FCC does not have the authority to prevent companies like Verizon from engaging in online corporate censorship by blocking or discriminating against certain content online. The FCC, however, can reestablish its authority to reregulate the broadband industry and protect the public from discriminatory business practices.
FCC Chairman Julius Genachowski has faced relentless pressure from the phone and cable companies to stop the FCC from moving forward. Instead of standing up for the public, his office has held closed-door meetings with Google, AT&T, Comcast, and Verizon, allowing these companies the opportunity to write their own rules that would restrict our free speech rights online.
The chairman announced last week that his office will end the backroom negotiations. But no matter how the chairman tries to put a positive spin on what went on at these meetings, we all know nothing good comes from federal agencies allowing themselves to be captured by industry.
If we are witnessing the beginning of the end of the open Internet as we know it, Chairman Genachowski wouldn't be the only one who deserves blame.
While the news media have been obsessed by the lack of bipartisanship in Washington, one story they have missed is how corporate campaign contributions have united both Democrats and Republicans to work together to kill an open Internet. Close to 80 Democrats have formed an alliance with House Republicans to kill net neutrality. They have written to the FCC, urging the Commission not to move forward with protecting an open Internet.
Rep. Gene Green (D-Texas), who has led the effort among Democrats in the House to undermine the FCC, and Rep. Fred Upton (R-Mich.) just introduced bipartisan legislation that would prevent the commission from acting to protect the public.
President Obama campaigned on a promise to take a "back seat to no one" in his support of network neutrality, a position he restated earlier this year. There's worry the White House now might retreat from that position since it wants the phone and cable companies to continue writing checks to Democrats during this midterm election.
To Read the Rest of the Report
By Joseph Torres
Save the Internet
...
The irony is that, while Google is colluding with Verizon on a deal that would allow for corporate censorship on the Internet, it is also working the State Department to pressure foreign countries to open up their markets to prevent government censorship abroad.
What makes this deal so problematic is that a federal court ruled in April that the Federal Communications Commission (FCC) did not have the authority to regulate the broadband industry. The decision threw out the legal framework adopted by the Bush administration to deregulate the broadband industry, a framework that has resulted in a broadband market dominated by companies like Verizon, Comcast, and AT&T.
At this moment, the FCC does not have the authority to prevent companies like Verizon from engaging in online corporate censorship by blocking or discriminating against certain content online. The FCC, however, can reestablish its authority to reregulate the broadband industry and protect the public from discriminatory business practices.
FCC Chairman Julius Genachowski has faced relentless pressure from the phone and cable companies to stop the FCC from moving forward. Instead of standing up for the public, his office has held closed-door meetings with Google, AT&T, Comcast, and Verizon, allowing these companies the opportunity to write their own rules that would restrict our free speech rights online.
The chairman announced last week that his office will end the backroom negotiations. But no matter how the chairman tries to put a positive spin on what went on at these meetings, we all know nothing good comes from federal agencies allowing themselves to be captured by industry.
If we are witnessing the beginning of the end of the open Internet as we know it, Chairman Genachowski wouldn't be the only one who deserves blame.
While the news media have been obsessed by the lack of bipartisanship in Washington, one story they have missed is how corporate campaign contributions have united both Democrats and Republicans to work together to kill an open Internet. Close to 80 Democrats have formed an alliance with House Republicans to kill net neutrality. They have written to the FCC, urging the Commission not to move forward with protecting an open Internet.
Rep. Gene Green (D-Texas), who has led the effort among Democrats in the House to undermine the FCC, and Rep. Fred Upton (R-Mich.) just introduced bipartisan legislation that would prevent the commission from acting to protect the public.
President Obama campaigned on a promise to take a "back seat to no one" in his support of network neutrality, a position he restated earlier this year. There's worry the White House now might retreat from that position since it wants the phone and cable companies to continue writing checks to Democrats during this midterm election.
To Read the Rest of the Report
Monday, June 07, 2010
On the Media: I'll Be Watching You
I'll Be Watching You
On the Media (NPR)
Written in 1986, the Stored Communications Act allows the government to obtain emails hosted on the internet more easily than they would those stored on your computer. Ryan Singel, blogger for wired.com, talks about how this law came to exist, and why it has advocacy groups and mail hosts like Google and Yahoo up-in-arms.
To Listen to the Episode
On the Media (NPR)
Written in 1986, the Stored Communications Act allows the government to obtain emails hosted on the internet more easily than they would those stored on your computer. Ryan Singel, blogger for wired.com, talks about how this law came to exist, and why it has advocacy groups and mail hosts like Google and Yahoo up-in-arms.
To Listen to the Episode
Friday, February 19, 2010
Lawrence Lessig: For the Love of Culture
(Courtesy of Open Culture)
For the Love of Culture
Lawrence Lessig
The New Republic
In early 2002, the filmmaker Grace Guggenheim--the daughter of the late Charles Guggenheim, one of America’s greatest documentarians, and the sister of the filmmaker Davis Guggenheim, who made An Inconvenient Truth-decided to do something that might strike most of us as common sense. Her father had directed or produced more than a hundred documentaries. Some of these were quite famous (Nine from Little Rock). Some were well-known even if not known to be by him (Monument to a Dream, the film that plays at the St. Louis arch). Some were forgotten but incredibly important for understanding American history in the twentieth century (A Time for Justice). And some were just remarkably beautiful (D-Day Remembered). So, as curator of his work, Grace Guggenheim decided to remaster the collection and make it all available on DVD, which was then the emerging platform for film.
Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.
Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements--music, plot, characters, images, and so on. Once the film is made, any effort at remaking it--moving it to DVD, for example--could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations--clips from news stations--from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film--typically, news footage from CBS or NBC.
Whenever a documentarian wanted to include these clips in his film, he would ask CBS or NBC for permission. Most of the time, at least for a healthy fee, CBS and NBC and everyone else was happy to give permission so as to be included. Sometimes they wanted to see first just how the clip would be used. Sometimes they would veto a particular use in a particular context. But in the main there was a healthy market for securing permission to quote. The lawyers flocked to this market for permission. (That’s their nature.) They drafted agreements to define the rights that the quoter would get.
I suspect that most filmmakers never thought for a second about how odd this “permission to quote” was. After all, does an author need to get permission from The New York Times when she quotes an article in a book about the Depression? Indeed, does anyone need permission from anyone when quoting public statements, at least in a work talking about those statements? Ordinarily, one would think that this sort of “use” is “fair,” under the rules of copyright at least. But most documentarians--indeed, most filmmakers--did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.” Instead they agreed to licenses that govern--exclusively, as they typically asserted--the rights to use the quotes that were in the film. So, for example, the license would insist that the only right to use the film came from the license itself (not fair use). And it would then specify the scope and term of the right--five years, North American distribution, for educational use.
What that agreement means is that if the filmmaker wanted to continue to distribute the film after five years, he would have to go back to the original rights holder and ask for permission again. That task may not sound so difficult if you think about one clip in one documentary. But what about twenty, thirty, or more? And even assuming that you can find the original holders of the rights, they now have you over a barrel--as the owners of the famous series Eyes on the Prize discovered. Jon Else, the producer and cinematographer for the series, described the problem in 2004 (extraordinary efforts have now resolved it):
[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.
As American University’s Center for Social Media concluded, “rights clearance costs are high, and have escalated dramatically in the last two decades,” and “limit the public’s access” to documentary film. The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which--like lead in gasoline--were introduced without any public recognition of their inevitable toxicity.
Except of course for those with a devoted heir, such as Grace Guggenheim. She was not willing to accept defeat. Instead she set herself the extraordinary task of clearing all of the rights necessary to permit her father’s films to be shown. Eight years later, she is largely done. About ten major works remain. Just last year, her father’s most famous documentary--Robert Kennedy Remembered, made in 1968 in the two months between Kennedy’s assassination and the Democratic National Convention, and broadcast only once--was cleared for DVD release through the Robert F. Kennedy Memorial Center.
I entered the rare book room at the Harvard law library for the first time last fall. At the end of the main reading room, the Elihu Root Room, there are bookcases filled with old books, some of them older even than the Republic. I had come to see just what it would take to have a look at the oldest published works that were available at this, one of America’s premier libraries. Not much, it turned out. The librarians directed me to a table. I was free to page through the ancient text, carefully.
Books--physical books, and the copyrighted work that gets carried in them--are an extraordinarily robust cultural artifact. We have access to practically every book ever published anywhere. You do not need to be a Harvard professor to enter the rare book room at the law library. You do not need to touch rare books to read the work those books hold. Older works--before 1923, in the United States--are in the public domain, which means that anyone, including any publisher, can copy and reprint that work without any permission from anyone else. There is no Shakespeare estate that reviews requests for new editions of Hamlet. The same is true for every nineteenth-century author in America. These works are freely and widely available, because no law restricts access to these works.
And just about the same is effectively true for any book still under copyright. No doubt, publishers are not free to take the latest Grisham novel and print a knockoff. But through the extraordinary efforts of libraries (and they are Herculean, no doubt) and used bookstores, you can get access to basically anything, and for practically nothing. Your library can get it, and share it with you almost for free. Your used bookstore can find it and sell it to you for less than the cost of a night at the movies.
So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it--some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation.
To Read the Rest of the Essay
For the Love of Culture
Lawrence Lessig
The New Republic
In early 2002, the filmmaker Grace Guggenheim--the daughter of the late Charles Guggenheim, one of America’s greatest documentarians, and the sister of the filmmaker Davis Guggenheim, who made An Inconvenient Truth-decided to do something that might strike most of us as common sense. Her father had directed or produced more than a hundred documentaries. Some of these were quite famous (Nine from Little Rock). Some were well-known even if not known to be by him (Monument to a Dream, the film that plays at the St. Louis arch). Some were forgotten but incredibly important for understanding American history in the twentieth century (A Time for Justice). And some were just remarkably beautiful (D-Day Remembered). So, as curator of his work, Grace Guggenheim decided to remaster the collection and make it all available on DVD, which was then the emerging platform for film.
Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.
Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements--music, plot, characters, images, and so on. Once the film is made, any effort at remaking it--moving it to DVD, for example--could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations--clips from news stations--from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film--typically, news footage from CBS or NBC.
Whenever a documentarian wanted to include these clips in his film, he would ask CBS or NBC for permission. Most of the time, at least for a healthy fee, CBS and NBC and everyone else was happy to give permission so as to be included. Sometimes they wanted to see first just how the clip would be used. Sometimes they would veto a particular use in a particular context. But in the main there was a healthy market for securing permission to quote. The lawyers flocked to this market for permission. (That’s their nature.) They drafted agreements to define the rights that the quoter would get.
I suspect that most filmmakers never thought for a second about how odd this “permission to quote” was. After all, does an author need to get permission from The New York Times when she quotes an article in a book about the Depression? Indeed, does anyone need permission from anyone when quoting public statements, at least in a work talking about those statements? Ordinarily, one would think that this sort of “use” is “fair,” under the rules of copyright at least. But most documentarians--indeed, most filmmakers--did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.” Instead they agreed to licenses that govern--exclusively, as they typically asserted--the rights to use the quotes that were in the film. So, for example, the license would insist that the only right to use the film came from the license itself (not fair use). And it would then specify the scope and term of the right--five years, North American distribution, for educational use.
What that agreement means is that if the filmmaker wanted to continue to distribute the film after five years, he would have to go back to the original rights holder and ask for permission again. That task may not sound so difficult if you think about one clip in one documentary. But what about twenty, thirty, or more? And even assuming that you can find the original holders of the rights, they now have you over a barrel--as the owners of the famous series Eyes on the Prize discovered. Jon Else, the producer and cinematographer for the series, described the problem in 2004 (extraordinary efforts have now resolved it):
[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.
As American University’s Center for Social Media concluded, “rights clearance costs are high, and have escalated dramatically in the last two decades,” and “limit the public’s access” to documentary film. The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which--like lead in gasoline--were introduced without any public recognition of their inevitable toxicity.
Except of course for those with a devoted heir, such as Grace Guggenheim. She was not willing to accept defeat. Instead she set herself the extraordinary task of clearing all of the rights necessary to permit her father’s films to be shown. Eight years later, she is largely done. About ten major works remain. Just last year, her father’s most famous documentary--Robert Kennedy Remembered, made in 1968 in the two months between Kennedy’s assassination and the Democratic National Convention, and broadcast only once--was cleared for DVD release through the Robert F. Kennedy Memorial Center.
I entered the rare book room at the Harvard law library for the first time last fall. At the end of the main reading room, the Elihu Root Room, there are bookcases filled with old books, some of them older even than the Republic. I had come to see just what it would take to have a look at the oldest published works that were available at this, one of America’s premier libraries. Not much, it turned out. The librarians directed me to a table. I was free to page through the ancient text, carefully.
Books--physical books, and the copyrighted work that gets carried in them--are an extraordinarily robust cultural artifact. We have access to practically every book ever published anywhere. You do not need to be a Harvard professor to enter the rare book room at the law library. You do not need to touch rare books to read the work those books hold. Older works--before 1923, in the United States--are in the public domain, which means that anyone, including any publisher, can copy and reprint that work without any permission from anyone else. There is no Shakespeare estate that reviews requests for new editions of Hamlet. The same is true for every nineteenth-century author in America. These works are freely and widely available, because no law restricts access to these works.
And just about the same is effectively true for any book still under copyright. No doubt, publishers are not free to take the latest Grisham novel and print a knockoff. But through the extraordinary efforts of libraries (and they are Herculean, no doubt) and used bookstores, you can get access to basically anything, and for practically nothing. Your library can get it, and share it with you almost for free. Your used bookstore can find it and sell it to you for less than the cost of a night at the movies.
So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it--some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation.
To Read the Rest of the Essay
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