March 2009

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Moral panics

25 March 2009 in Copyright | 1 comment

Last night in London the SCL welcomed William Patry – inter alia long-time author of 6,000 pages of Patry on Copyright, past Copyright Counsel to the House of Representatives Committee on the Judiciary and currently Copyright Counsel to Google inc – to deliver its the annual lecture, “Crafting an effective Copyright Law”.

His central thesis is that copyright, a creature of statute – or as he preferred to call it, a government program – can only be effectively regulated by reference to the empirical evidence. If the current copyright regime does not work for the digital age – as it clearly does not – it should be changed not to meet ideological or moral arguments about what is right and just, but solely on the basis of evidence as to what will serve the common good.

He used the failure of the regulation of the financial markets as an analogy: how reliance on free market ideology rather than facts and evidence has sent us all down the pan. Just as the banks have clearly demonstrated that they are incapable of acting even in their shareholders’ interests, so too has the music industry shown an inability to adopt a business model that serves its interests; just as the banks have failed their customers, so have copyright holders failed consumers.

Although he is described as a centrist in the blurb for the event – and is against ideology from whatever wing determining copyright policy – his arguments clearly did not go down too well with those in the audience who serve larger copyright holders, those who lean to free market fundamentalism or those who are simply stuck in pre-digital era thinking: applause was polite rather than enthusiastic. (In fact, politeness ruled: questioners were polite and Patry himself was, by his own admission, too polite to point fingers at our masters’ failures of regulation.)

He was coy on proposed solutions, though tongue-in-cheek suggested that the insertion of a new first section in the Copyright Act simply stating that “copyright is not a property right” would be a good start.

His book Moral Panics and Copyright Wars, due out in September, will no doubt be a more riveting read – and 95 per cent lighter – than Patry on Copyright.

Not a problem

18 March 2009 in Law publishing | 6 comments

Clay Shirky eloquently states the problem facing the newspaper industry:

People committed to saving newspapers [are] demanding to know “If the old model is broken, what will work in its place?” To which the answer is: Nothing. Nothing will work. There is no general model for newspapers to replace the one the internet just broke.

With the old economics destroyed, organizational forms perfected for industrial production have to be replaced with structures optimized for digital data. It makes increasingly less sense even to talk about a publishing industry, because the core problem publishing solves – the incredible difficulty, complexity, and expense of making something available to the public – has stopped being a problem.

With advertising revenues nosediving, proprietors are culling journalists to maintain profit margins but with no clear idea of how to make the web pay.

The need to find new business models that work in the digital age may be less urgent in other publishing sectors, but it is no less important. Many of the services offered by the incumbent law publishers were designed to meet needs that the web (of increasingly open and inter-connected information) is now better able to serve in new ways, and they have consequently been experiencing a steady decline in subscriptions as users opt for alternative, more appropriate, lower cost or free services.

Responses assume the old model still has relevance; some are misguided or even suicidal: pricing up existing services, developing more walled gardens, establishing me-too communities and diversifying away from their core competencies. For how much longer can they continue to ramp up prices to maintain profits? How long before free access not just to primary law sources and news, but also to quality guidance and commentary, seriously undermine the viability of their business? How long before they acknowledge that the 20th century law publishing model is broken?

They are putting on a brave face in the face of the storm, still reporting profits and professing confidence in their products. One wouldn’t expect otherwise. The problem is, as Shirky says, that publishing is no longer a problem. We are all publishers now.

The future law book is not a book

3 March 2009 in ebooks | 3 comments

Considering whether we were experiencing the beginning of the end of print, I ended my previous post with the prediction that the law text book would be the last print format left standing (after journals, law reports, looseleafs).

I stand by that. The printed (and bound) book is wonderful information package, designed 500 years ago and changed not a lot since then. We love books – their look, their feel, their portability, their associations. It will be a long, long time before they become an endangered species.

Even the law book will die slowly. But what would accelerate its decline? What is the future law book? Scott Vine and Jordan Furlong have offered their thoughts.

Scott loves books as above and sees the lawyer of the future carrying an e-book reader, holding all the texts (s)he might need but preserving the look and feel of the print versions.

But we know that law books are different. The law changes constantly and the book cannot much longer usefully continue to function as a staple form of reference. So Jordan adds a lot of spice to the future law book, envisaging:

a dynamic, full-scale legal knowledge portal – 24/7 Net-connected, automatically updated, linked to a community of writers and readers, plugged in to a collaborative legal knowledge world well beyond the written word

Sounds good, but, unless I misread him, he’s still talking about a book … with legs. Why would the digital future of the law book be the “book”. There are few law books that are designed to be read from cover to cover; they are reference books, generally dipped into to extract relatively small chunks of information. Authors and publishers are justly proud of the packages they produce, but we readers are not wedded to the law book in the same way.

So, in looking to the future, I ask myself questions like these: Is Wikipedia a book? Is Brittanica? How much longer will we want to shepherd our “own” libraries (think iPod with iTunes) if we can have serviced access to all libraries (check out Spotify)?

The answers lead me to this conclusion: the future of the law book is not the e-book and the platform is not the e-book reader. The web is the platform and if we put on the right pair of glasses we see the future of the law book already taking shape: it is all those web services that are not books and that do not try to replicate them. Soon we’ll be able to hook into that library with whatever device we fancy.

Update: Abracadabra! We now we have Kindle by iPhone but, unsurprisingly, it sucks for non-linear reading.