Digital Public Library of America, Session IV

These are my live-blog notes for the fourth and final full session at the DPLA content and scope working session:

1) The messy issue of rights and permissions for in-copyright works is the biggest issue that the DPLA will face.  (We have a workstream set up for legal issues on the wiki.)  A variant of this issue: the DPLA could play a role in ensuring that usage rights for end-users are not as untenable (silly?) as the recently-announced HarperCollins’ 26 lends rule.   As another related point: We should have a legislative solution to tricky copyright restrictions in mind, as a proposal (or a package of proposals), but we need also to make progress absent, or at least prior to, legal change.  In addition to orphan works issues, there are copyright issues laden in scholarship associated with computation and massive data sets, as an example.

2) Don’t undercut public libraries as you build a Digital Public Library of America.  There’s a risk that the success of a #dpla might result in politicians and other funders seeing less utility in local public libraries.

3) The world is going mobile on such a massive scale.  We need to build that in from the start.  There are over 5 billion active mobile users.  Mobile broadband is growing in penetration, and nearly a third of users globally have a smart-phone.  In 2013 – 2014, more people will access information on the web via a mobile device than on a laptop or desktop.  We have to bring the DPLA to the people.

(Side-note: Dan Cohen has posted his #dpla comments to his blog.)

Digital Public Library of America, Session III

Here are some quick notes on three take-aways from Session III at the Content and Scope planning meeting of the Digital Public Library of America.

1) Materials that are in copyright will have to be thought about by the DPLA differently (the red zone) from those in the public domain (green) or orphan works and gray literature (yellow).  But ideally the members of the public accessing the works would not know about these differences when approaching the content.  This issue leads to the tiering issue (or perhaps we need a different word) for DPLA.  From a user perspective, could we make it not matter whether the material, before coming to DPLA, was red, yellow, or green?  There are a variety of ways that might come to pass, including a possible alternative compensation model for books as a way to pay creators.  (For a proposal to create two types of alternative compensation system in a parallel field, music and movies, see William W. Fisher, Promises to Keep, Ch. 6).

2) A user may have multiple roles: on the one hand, may be an author who wants credit or payment for her work, and on another is seeking low-cost or free, unfettered access to the work of others.  And diversity of users becomes tricky when one adds the international access dimension.

3) A five-year (or other) moving wall strategy, in partnership with publishers, seems like an attractive possible approach to digitizing materials and making them available.  One might be able to enable payment for a series of years and then return the works to the public domain.  But there may be issues lurking here, too.

The moderator adds some more: a) the scope and content of #dpla must include materials that are not just in the public domain, which leads to sustainability and incentives; b) talking about services and lots of added values, with many players with multiple roles, where many people in the ecosystem of publishing, reading, and using information have a stake in the success of #dpla; c) library materials should be made available to the public in ways that are as free, open and useful as possible.

Digital Public Library of America, Session II

My three take-away points/topics from the second session, focusing on characteristics of public domain collections and open business models:

1) We have done a lot of work toward collection-building in a DPLA.  We need to learn from the experience of our own projects in the United States and those of others that are underway today.  Europeana is an especially important reference point, as are many other current and past major mass digitization projects.

2) We need to avoid going it alone.  A shared vision and collaboration is crucial.  The time for doing “our own thing” in our own way is over.  The DPLA needs to aim to establish a system or a platform that will support collaboration across a broad range of participants doing relevant work who are willing to work together.  We need to respect the identities of those who have developed or hold content.  And a distributed library system can be very resilient and diverse and strong as a result.  We need to allow lots of people to succeed via the DPLA.  (One might consider what needs to be centralized, such as indexing, while having the bulk of the system, content, and so forth distributed/federated.)

3) Even sticking with public domain materials won’t be cheap or easy.  While some say “scanning is the easy part,” there are still major costs and challenges given the scope of what we seek to accomplish — and we need a model to sustain the work over time.  Digitization is very expensive, and almost exclusively grant-funded today.  And it’s necessary to get to a critical mass of information for it to be useful to users, which we can only get done by collaboration (see 2, above).  There are best practices that we ought to learn from with respect to scanning — and all else that we have to do, such as metadata creation and collection, user interface, search and discovery, etc.  Despite the exciting progress across many projects to scan much information, a business model for any DPLA that can mix open and paid is extremely important to develop for sustainability purposes.

One person adds two additional key points (related to mine, but said another way) from this session, so I add them here:

a) We can’t anticipate uses.  Stay flexible.

b) We need to think about standards and metadata as a core part of the enterprise.

Digital Public Library of America, Session 1 Notes

Here’s my rough live-blog (while moderating; please excuse briefness) of the key points and problems from session 1 of the Digital Public Library of America working meeting on “Scope and Content” of a possible DPLA, today at the Harvard Faculty Club in Cambridge, MA:

1) We began with a voice from public libraries and one from research libraries.  The dichotomy broke down quickly, even as both focus areas seem important at the outset.  The group appeared to be in “violent agreement” as to seeing a spectrum of users rather than two completely disconnected categories (public/research).  The stronger form of this argument: perhaps we should even focus on activities/uses/functions rather than a sense of user identities if possible.

2) There is a key problem potentially in the way: we as libraries don’t have the ability to provide access to users to all materials that we previously could.  The digital age cuts against broad access in some ways.  Do we take on this problem, which is one of technology, contract, markets, culture?

3) There are three ways in which to see our current posture (at least):

a) We have what we need to build a DPLA.  Some say that we have what we need, and we just need get on with it.  The approach should be: “Buy what we can, scan what we can’t.”

b) Others disagreed with this view.  Law reform, they argue, is an important, necessary part of what we want to do.

c) Others still view that not only do we not have everything we need, it’s getting worse (see, in a way, the concerns that JZ builds out in the Future of the Internet — and How to Stop It).

We’ll round up these types of issues and discussion points and include on the DPLA wiki after the session.  Please join on in.  In the meantime, check Twitter #dpla for updates on the fly of the meeting discussion itself.

Fifth Conference on Law and Mind Sciences

In studying the practices of young people with respect to information and technology, one of the themes that comes up all the time is whether or not “their brains are being rewired” as they use new media.  Conversations about how kids interact with one another through social media often turn to questions of whether or not young people who spend a lot of time on Facebook (or, previously, MySpace, Friendster, and so forth) are less happy, less truly social, or other undesirable things.  It is plain that those who study mind science have an enormous amount to contribute — if not the most important things to contribute — to our shared understanding of what is going on with youth, information, and technology in the 21st century.

Today, Prof. Jon Hanson is hosting the Fifth Conference on Law and Mind Sciences at Harvard Law School.  The idea, dating back to 2007, has been to “introduce to scholars and students of law and legal theory intriguing, relevant research from social psychology, social cognition, public health, and related disciplines and to stimulate a productive, interdisciplinary exchange between scholars across these fields.”  It’s a rare and fun opportunity to hear from a broad range of mind scientists about their work and how it might intersect with ours in the field of law.

For instance, Dr. Laura Kubzansky (Harvard School of Public Health) discussed the relationship between stress and resilience.  (One data point that jumped out very clearly: the biggest contributor to some terrible health effects is work-related stress.)

Dr. Kristina Olson (Yale psychology department), an expert on children’s social cognitive development, spoke directly to some of the issues that we wonder about in the Youth and Media Policy group at the Berkman Center with respect to social inequalities.  Very young children (aged 3 – 5), her research shows, have an understanding of social inequality.  Even three year olds are more likely to presume that whites in America are more likely to be rich than black Americans (whether or not the children asked were white or black).  Another interesting finding of Dr. Olson’s was the likelihood of small children, each of whom has been allocated a stuffed animal to give to one person, to give the gift to a person who had allocated resources more equitably than others.

Arnold Ho (soon-to-be-minted ph.d. in psychology at Harvard) works on social dominance theory.  He introduced the theory to those of us previously ignorant of it (myself included) and showed how new research on the biased perception of biracials (Asian-White and Black-White biracials, in his work) may serve a hierarchy-increasing function.

There were many additional wonderful presentations and take-aways, especially in Jon Hanson’s own closing lecture.  My three thoughts at the end of the day: 1) how fun it is to feel allowed to be a student again, where the topic on the table is relevant to my area of work, but is not something about which I know the first thing; 2) how much more we can learn about kids and technology if we study the methods and the learning of mind sciences researchers; and 3) how valuable Jon Hanson’s work on the way we make policy judgments generally is for anyone studying the law or making normative judgments about how to order society.

Collective Management of Copyright: Solution or Sacrifice?

The Kernochan Center at Columbia University Law School is hosting its annual symposium today in NYC on the timely issue of collective management of copyright.

Non-IP lawyers may be scratching their heads after reading that sentence.  What, after all, is collective management of copyright?  Daniel Gervais, the opening keynote speaker, starts the conference by answering that question, as he has in much of his terrific scholarship (including his edited book on Collective Management of Copyright; see ch. 1, up to page 28).  Collective management, Gervais tells us, is a way to make the copyright system work in a complex world of many stakeholders.  A collective management organization (CMO) aggregates a series of rights held in private hands and then issues licenses on a broad, common basis to users.  The historical uses of this approach date back to the 1700s in France, when dramatic works began to be managed on a collective basis.  More recently, also in Europe, many CMOs have emerged to manage rights in a range of settings.  We also see collective management in the music business in the United States.

The reason that I’m particularly interested in collective management of copyrights right now has to do with books and other materials collected and distributed by libraries.  I am working, along with other colleagues, on the nascent idea of a Digital Public Library of America.  We are exploring how we might develop a way to make much more in the way of digitized works available broadly, through online or physical libraries, in a public-spirited way that ensures also that authors and other creators continue to get paid for their work.   The proposed Google Books Search Settlement, pending before Judge Chin in federal court here in New York, would be another example of a privately-orchestrated collective management system for books.  Our DPLA idea might well take the form of a collective management arrangement with tiered access to different sorts of data.

To answer the question posed by the conference title: I think collective management of copyright is generally speaking a useful solution to problems of fragmentation, scale, and complexity in a digital era.  These schemes are not perfect, and nor do they represent a panacea.  My view is that well-designed collective management schemes may well provide the best way to serve the shared interests of creators, publishers, and the public in the context of libraries and otherwise.  I am eager to work with others to explore how a collective management arrangement might help to establish a DPLA.

As a side note, we are releasing today a wiki where anyone can join in the effort of developing this idea.  For instance, see the page devoted to the track dealing with Legal Issues, seeded by Prof. Pam Samuelson of Berkeley Law and her team.

And thanks and congratulations to June Besek, Pippa Loengard, Prof. Jane Ginsburg, and their team and students at Columbia for this helpful and impressive conference.

Shepard Fairey and AP Settle Copyright Suit

The artist Shepard Fairey and the Associated Press announced today that they have reached a settlement in their dispute over copyright issues related to the Obama “Hope” poster created during the 2008 presidential campaign cycle.  The AP has also issued its own press release about the settlement.

(Disclosure: Along with my HLS colleague, Prof. Terry Fisher, and an extraordinarily able team led by Geoffrey Stewart and Meir Feder from the law firm Jones Day, I was co-counsel for Shepard Fairey.  See related story here.  Prof. Fisher and I served as pro bono counsel in our personal capacities; neither the Harvard Law School nor the Berkman Center for Internet & Society, with which we are both affiliated, were institutionally involved in any way.)

Noah Feldman, Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices

I have had the great pleasure this evening of introducing Prof. Noah Feldman on the occasion of his talk on his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010).  Noah’s interlocutor: our great friend Christopher Lydon, former Berkman Center fellow and journalist who has led the way in print (“on the bus” with the NYT in 1972); as Boston’s leading serious TV presence (on WGBH); the voice of The Connection (on NPR and WBUR, my all-time favorite radio program); and now a pioneer of the podcasting medium (with 500,000 downloads a month of Radio Open Source, based at the Watson Center at Brown).

Noah is the Bemis Professor of Law at Harvard Law School.  He is already one of the undisputed shining stars of our generation of scholars — in law or any field.  His work is known for an almost impossible breadth and depth.  Noah’s scholarship has been influential across many domains, from international affairs, domestic politics in America, and Constitutional Law.  He’s also a popular and effective teacher, both for our students here at Harvard Law School and of the public at large, through his writing in the New York Times Magazine, the Wall Street Journal and elsewhere.  As I read the opening passages of Scorpions, I was struck by the sense that, seventy-five years from now, our great-grand-children may well read a story as compelling as this one with Noah as a subject rather than its author.

Scorpions is an incredibly fun read — hard to put down.  (Not surprisingly, it seems already to be jumping off the shelves, if its current Amazon rank is any indication.)  He starts with Franklin Delano Roosevelt’s rise to power and his assembly of an extraordinary group of four, soon-to-be-famous Supreme Court justices: Felix Frankfurter, Hugo Black, Robert Jackson, and William O. Douglas.  These characters turn out, each, to be as fascinating as individuals as they were influential as jurists.  The Supreme Court as an institution, and the way that we think about the Constitution, were changed at their hands.  The narrative that he recounts bears directly on the processes of nominating and confirming Supreme Court nominees and on the ways that the Court does (and should) work.  In his book talk, Noah emphasized a key theme that is implied throughout the book: how personality shapes the way that the law is made.  There is great insight in this book as to fights over the First, Fourth, and Fourteenth Amendment; Brown v. Board of Education; the law in wartime; the rule of law itself; and much more.

Setting aside the obvious interest that this book will hold for lawyers, what is most compelling about the book is the way that Noah intertwines so many weighty themes together into a single story about these four men and their President.  Noah weaves together a whole host of major topics, beyond the law itself, of the twentieth century: war, international relations, domestic politics, governance, cultural struggles, religion, social class, crime, the terrorism of the Italian anarchists, ambition and rivalry.

As Noah put it during the book talk — prompted by Christopher Lydon’s incisive questions — Roosevelt’s Presidency was “a completely different world than the one we live in today.”  He writes in a way that makes these stories accessible from a presentist perspective.  (As a law professor, “I’m not the sort of historian who says he can’t address presentist concerns,” Noah says.)  Another great quote from Noah, reflecting on the hope that we’d confirm some “flawed people” to future Supreme Courts: “I’d hope to be a poster-child for flawed people.”  I learned a great deal from the time well-spent in reading Noah’s important new book.

(The video of this informative conversation between Noah and Chris, which was recorded, should eventually be published online by HLS on our YouTube channel, I’d imagine.  And for a different, not-so-positive, take on the book, Noah pointed verbally to the WSJ’s recent review.)

Henry N. Ess III Chair Lecture Notes

I’m preparing for a lecture tonight at Harvard Law School.  Here’s the abstract:

The Path of Legal Information

November 9, 2010

I propose a path toward a new legal information environment that is predominantly digital in nature.  This new era grows out of a long history of growth and change in the publishing of legal information over more than nine hundred years years, from the early manuscripts at the roots of English common law in the reign of the Angevin King Henry II; through the early printed treatises of Littleton and Coke in the fifteenth, sixteenth, and seventeenth centuries, (including those in the extraordinary collection of Henry N. Ess III); to the systemic improvements introduced by Blackstone in the late eighteenth century; to the modern period, ushered in by Langdell and West at the end of the nineteenth century.  Now, we are embarking upon an equally ambitious venture to remake the legal information environment for the twenty-first century, in the digital era.

We should learn from advances in cloud computing, the digital naming systems, and youth media practices, as well as classical modes of librarianship, as we envision – and, together, build – a new system for recording, indexing, writing about, and teaching what we mean by the law.  A new legal information environment, drawing comprehensively from contemporary technology, can improve access to justice by the traditionally disadvantaged, including persons with disabilities; enhance democracy; promote innovation and creativity in scholarship and teaching; and promote economic development.  This new legal information architecture must be grounded in a reconceptualization of the public sector’s role and draw in private parties, such as Google, Amazon, Westlaw, and LexisNexis, as key intermediaries to legal information.

This new information environment will have unintended – and sometimes negative – consequences, too.  This trajectory toward openness is likely to change the way that both professionals and the public view the law and the process of lawmaking.  Hierarchies between those with specialized knowledge and power and those without will continue its erosion.  Lawyers will have to rely upon an increasingly broad range of skills, rather than serving as gatekeepers to information, to command high wages, just as new gatekeepers emerge to play increasingly important roles in the legal process.  The widespread availability of well-indexed digital copies of legal work-products will also affect the ways in which lawmakers of all types think and speak in ways that are hard to anticipate.  One indirect effect of these changes, for instance, may be a greater receptivity on the part of lawmakers to calls for substantive information privacy rules for individuals in a digital age.

An effective new system will not emerge on its own; the digital environment, like the physical, is a built environment.  As lawyers, teachers, researchers, and librarians, we share an interest in the way in which legal information is created, stored, accessed, manipulated, and preserved over the long term.  We will have to work together to overcome several stumbling blocks, such as state-level assertions of copyright.  As collaborators, we could design and develop it together over the next decade or so.  The net result — if we get it right — will be improvements in the way we teach and learn about the law and how the system of justice functions.

Born Digital: The Video Version

One of the ideas that Urs Gasser and I had from the start of the Born Digital book project was to find a way to co-produce the ideas behind the book.  The concept was to celebrate, in a graphic way, the creativity and ability of young people.  We worked closely with dozens of student interns on literature reviews, background research, focus groups and interviews, drafting and editing of parts of the book, and so forth.  We’ve been blessed by an extraordinary team of young collaborators.

One specific example of the co-production: a group of students have completed another version of our book, made exclusively by them with no editorial oversight from us, in the form of a series of videos.  Each of these videos are based on a chapter of the traditional form of Born Digital.  The upshot is that one can now “play” the book by watching a short video of each chapter.  The videos are short, roughly 3 to 5 minutes long, and they’re all freely available online.

The purpose of this project is in part to push the boundaries of what a “book” is in the digital age.  I love the traditional codex and all that’s followed on from the original idea.  But I think also that there’s room for new designs for long-form arguments that make a series of complex, interrelated points and which require sustained attention to understand.  I’m convinced that the traditional book will survive, but I think it’s also important that we experiment with new formats as well.

I know that Urs and I are hugely grateful to the many students — and fellows and collaborators throughout our research network, like danah boyd — who have contributed their smarts and their innovative ideas to our shared understanding of Youth and Media in a digital era.

We very much hope that you will try out the free, online video version of Born Digital!  And special thanks and all credit to the student video creators and Sandra Cortesi and other terrific Berkman staff who organized the crew.