Kal Raustiala is a law professor at the University of California in Los Angeles, and talked in a recent video interview about piracy, intellectual property and the “fashion paradox” for the website Big Think. The term “fashion paradox” was coined to describe how the fashion industry has very little protection for intellectual property — new designs are copied almost the instant they hit the runway — and yet there is no shortage of creativity, or money, in that business (supporters of strong IP protection laws usually argue that without them, many artists would no longer create).

Raustiala also talks about how industries often assume that technology such as the VCR will decimate their business, only to find out that they can actually make far more money with such technologies than they did before. The video is definitely worth a watch if you have some time. The site that it comes from, Big Think, is a kind of intellectual version of YouTube, featuring one-on-one interviews with leading thinkers and authors. Co-founder Victoria Brown — a Canadian — started the site earlier with support from Lawrence Summers, the former president of Harvard University, and Facebook backer Peter Thiel.

(hat tip to Hypebot for the link)

I just got an email from Google PR, saying the company has settled its long-running legal battle with publishers and authors over its ambitious book-scanning project, a settlement that was rumoured to be in the works for the past month or so. The project has been under a cloud since 2005, when the Association of American Publishers and the Authors Guild filed two class-action lawsuits alleging that scanning books without permission amounted to large-scale copyright infringement. The Web company said it would remove books from its index on request, but authors and publishers said this reverse-onus approach was unfair.

As part of the settlement, Google is paying $125-million to settle the legal claims, pay legal costs for the two groups, and — more importantly — will set up a new entity called the Book Rights Registry, which will be responsible for distributing payments that come from online access to books provided through Google (and through any similar programs created by other providers). The registry will also be responsible for locating rightsholders for old and out-of-print books, collecting and maintaining accurate info, and for providing a way for rightsholders to “request inclusion in or exclusion from the project.” In effect, Google is setting up a body that does what ASCAP and similar groups do for musicians.

This settlement is a huge step forward for online and electronic access to books. As Google has repeatedly argued, this will make it substantially easier for authors and publishers to find, distribute and monetize out-of-print books — in effect, creating or enhancing a “long tail” for book publishing. It will also make it easier for people to purchase electronic books, and for libraries to provide electronic access to books in their collections for readers and researchers alike (as part of the settlement, Google will provide free access to millions of scanned books through public libraries and universities). There are some more details about how Google Book Search will change on a micro-site the company has set up.

Update:

Mike Masnick at Techdirt is disappointed in the settlement. He makes a fairly persuasive argument that instead of caving in to author and publisher groups, Google should have fought to protect its right to make limited (and arguably fair) use of printed works for its project. Meanwhile, copyright expert Larry Lessig has posted his thoughts on the settlement.

Filmmaker Brett Gaylor has created what he calls an “open-source documentary” called RIP: A Remix Manifesto. It’s about the importance of mashups and the remix culture, and includes interviews with and footage of mashup DJ Gregg “Girl Talk” Gillis (and his parents, as far as I can tell from the clip), as well as Cory Doctorow, copyright expert Lawrence Lessig and Jammie Thomas, the mother who became a kind of sacrificial lamb in the record industry’s war on peer-to-peer downloading. In the spirit of the movie’s subject, the filmmaker has made some of his footage available for others to remix as they wish. The film premieres in Montreal this week. Hat tip to the CBC’s Jesse Brown for the link.

A U.S. Federal Court has ruled in the case of J.K. Rowling vs. the Harry Potter Lexicon, in which the Potter author sued to prevent a former librarian from publishing a compendium of facts about the novels. The book was based on the Lexicon website, which Steven Vander Ark has run for years — a fan site so comprehensive that Rowling herself has praised it in the past. The court decided on Monday that the Lexicon was not protected by the fair use clause in U.S. copyright law and would therefore be illegal if published. The judge, in my view, was completely wrong, and so was Ms. Rowling for bringing the suit.

I, of course, am not a lawyer. I don’t even play one on television. But I know a little bit about writing, and I know (or think I know) what copyright law was originally intended to do — which is to protect a creator’s rights to their creation, but also to balance those rights with the rights of society to create new works based on that original work. In my view, the judge’s decision gave the first part of that equation a vast amount of weight, while giving the second part virtually no weight at all. If anything, he should have done the exact opposite.

I’m not going to get any help in my view from Derek Bambauer of the Harvard Law School. Even before the decision he had pretty much decided that the Lexicon didn’t deserve to be covered by fair use, because it failed to meet any of the tests in the “four factor” standard — which looks at a) the amount of the work used; b) the nature of the work; c) whether the infringing work is “transformative” or simple copying, and d) what the effect of that work might be on the market for the original. But (not surprisingly) I think he’s wrong too.

Does the Lexicon use a lot of stuff from the Potter novels? Of course it does — it’s like an encyclopedia, or a concordance to Shakespeare; it has to use as much as possible (paradoxically, the judge rules against the Lexicon because it uses too much content from the Potter books, and then later says that it isn’t protected as a scholarly work because it isn’t scholarly enough). Is it transformative? I don’t see how it can be otherwise. It certainly isn’t anything like a regular Potter book; it’s just a compendium of facts and descriptions (for what it’s worth, Tim Wu seems to agree with me in a piece he wrote for Slate).

As for the effect on the market for Rowling’s novels, I don’t see how it could affect that. Would you rather read a Potter book or a big book that listed all the characters and events in order? In fact, interestingly enough, the court didn’t see that as a problem either — however, the judge said it would affect the market for lexicon-style books that Rowling might want to produce herself. That seems to be to take the “market effect” test and stretch it all out of shape. So now no one should be able to produce any derivative work because the author might someday want to copy that work? I hope that someone appeals this decision.

William Patry, a giant in the field of copyright law and a welcome voice of sanity amid the frequent clashes between copyright and digital media, has decided to end his blog (although he has since said he is reinstating his archive after initially removing it). His first reason for doing so — that he has become frustrated by the fact that people conflate his views on copyright with those of his employer, Google, and that he is tired of dealing with “the crazies” — is easy to sympathize with. As a prominent voice of reason, he has no doubt been the subject of many attacks from both sides of the issue. But it’s his second reason that makes me (and so do some others) more than a little depressed. As he describes it:

Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners.

I have often thought this — and written about it — but to hear someone like Patry confirm my suspicions is actually less satisfying than you might think. The fact that he sees the state of copyright as getting worse instead of better is pretty bleak. And he has apparently come to feel that way as well, and is sick of constantly being forced to be so negative:

“It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent. I have tried various ways to leaven this state of affairs with positive postings … I tried to find cases, even inconsequential ones, that I can fawn over. But after awhile, this wore thin, because the most important stories are too often ones that involve initiatives that are, in my opinion, seriously harmful to the public interest. I cannot continue to be so negative, so often.”

I wish Patry hadn’t made this choice, if only for selfish reasons. I can understand why he did, but I think the field of copyright — and particularly the area where it overlaps with digital media — is going to be considerably poorer as a result.