The Economist interviewed me about the settlement at some length, and made a podcast that I quite like. It recapitulates fairly painlessly (it’s 13 minutes) some of things that I’ve been saying about the Google lawsuit and settlement for some time.

And, for something completely different and arguably more important, Paul Krugman has a superb piece entitled “How Did Economists Get It So Wrong” in the New York Times Magazine of September 6. What’s remarkable is how economists got it so wrong 70 years after Keynes got it so right. Anyhow, this is a testimonial for Krugman’s piece from an admiring economist.

I learned something important that at some level I already knew.

The most important single thing about the Google settlement, simultaneously its greatest achievement and among its most vexing features, is the treatment of orphaned works (in James Grimmelman’s witticism, “zombie” works). The problem, as we all know, is that there are millions – no one quite knows how many – of works that may or may not be in copyright and for which the rightsholder(s) may or may not exist and may or may not be aware of their rights. Our ability to use these works is thus much compromised: we run the risk that a copyright holder will appear and claim damages. As we all know, Congress’s efforts to make it easier and safer to use orphaned works have failed. Moreover, the most recent draft legislation would have imposed difficult and costly burdens on a potential user by requiring the would-be user to make substantial efforts to find any potential but unknown rightsholder.

Along comes the Google settlement, which solves at least part of the problem, for Google and the Book Rights Registry, at one fell swoop. (Only part of the problem, because works that were not registered with the copyright office will likely not be in the settlement and yet may be just as orphaned as those that are registered.) Under the settlement, revenues generated by orphaned works will be held in escrow for for five years, allowing time for a rightsholder to come forward. It’s a moving window; if the rightsholder comes forward in year 22, she gets revenues from year 17 on. Thus the products that Google sells to individuals and institutions can include, among other works, millions of orphans (zombies). Without the orphans, the great public benefit of the settlement – the ability to find and use much of the literature of the 20th century in digital form – would be much diminished.

At the same time, the disposition of the revenues attributed to orphaned works is one of my least favorite parts of the settlement. The unclaimed revenues go first to support the operations of the BRR, and then, after that, will be used for charitable purposes consistent with the interests of publishers and authors. As the head of a library that has lovingly cared for these works for decades, the notion that the fruits of our labors (and those of many others in many libraries) redound to the benefit of entities that did not write, publish, or curate these works sticks a bit in my craw. So I hope that authors, publishers, the court, and the public will be vigilant in making sure the BRR does not squander the unclaimed revenues on mismanagement, high salaries, and the like. The “charitable purposes” should be an objective, not a remainder for unclaimed funds.

The settlement also gives Google and the BRR, and no one else, the right to use the orphaned works in this way. A number of commentators, have noted problems that may arise from Google’s privileged position in this regard. But there is an obvious solution, one that was endorsed at the Columbia meeting by counsel for the Authors Guild, the AAP, and Google: Congress could pass a law, giving access to the same sort of scheme that Google and the BRR have under the Google Settlement to anyone. And they could pass some other law that makes it possible for people to responsibly use orphaned works, while preserving interests for the missing “parents” should they materialize. Jack Bernard and Susan Kornfield have proposed just such an architecture to “foster” these orphans. Google has also made a proposal that would be a huge improvement.

Given that the parties to the suit, libraries, and the public would all benefit from such legislation, it should be a societal imperative to pass it. I look forward to AAP, the Authors Guild, and Google lobbying and testifying in favor of such legislation. I’d be happy to be there, too.

Broadly, peer review is the set of mechanisms that enable scholars to have reliable access to the informed opinions of other scholars, in a way that allows that those informed opinions themselves to be subject to similar vetting.

Scholarship requires reliable and robust peer review, and the academy engages in peer review in a variety of ways, both direct and indirect. Peer reviewed publication is one method, and a fairly powerful one at that. If you read a paper in (for my field) Econometrica or the Journal of Political of Economy, you are reasonably confident that accomplished scholars in the field have made a judgment that the paper is of high technical quality and worth reading, and that experienced scholars have made a judgment that the paper is of interest beyond its narrow subfield. Those are valuable pieces of news as one is looking for a way to spend some time, and they also tell you something about the likely quality and accessibility of papers outside of one’s specialty, should one be branching out or needing some background information or trying to figure out who to consider for an open position in the department.

Similarly, the appearance of an article in a leading specialized journal, or of a monograph in a prestigious series published by a scholarly press, conveys valuable information (at least to the cognoscenti in the field) about the quality of the book or paper.

The peers who undertake the reviews are genuine peers. They are scholars whose judgment is trusted by experienced members of editorial boards, who are themselves generally senior scholars in the relevant field(s). Such people engage in peer review pretty much all the time. They go to seminars and talks, read draft manuscripts from students and colleagues, near and far, review grant proposals, engage in workshops, and vet tenure and promotion files. In short, the peers doing the reviews are active scholars engaged in active scholarship. (Sometimes they even spend some time writing their own stuff.) They could no more NOT provide “peer review” then they could give up reading and writing. Peer review is part and parcel of what serious scholars do.

I’d guess (and I would love to see a serious study) that the fraction of time that scholars spend engaged in formal peer review of publications – journal articles and monographs — is less than half of the time they spend on peer review in total. Moreover, the work that has traditionally been done under the aegis of publishers is increasingly being done in other settings. In fields where it is customary to post working papers on the web, interesting papers generate a good deal of peer review in the form of commentary from peers. Given that it takes essentially no time to move from word-processor to web posting, and that it often takes years to get from submission to a journal or scholarly press to formal publication, it’s not surprising that informal peer review is becoming more common. This is good news. Scholarship advances more rapidly if work can be widely shared relatively quickly and easily. Given that publication in the literal sense (making public) is now easy and cheap in the technical sense, it seems almost certain that informal review will grow relative to formal review.

For several years, I was the chief academic officer of the University of Michigan, and I have been involved in the review of tenure cases, grant proposals, journal articles and book manuscripts for more than 30 years. The most interesting and important of these activities are reviews associated with tenure and hiring. It is often argued (quite explicitly so by some) that without the reviews associated with publishing, the academy would be at a loss in making judgments about the quality and productivity of scholars. To be sure, for reasons adduced above, a record of publication in strong peer-reviewed settings conveys valuable information to tenure and search committees, chairs, deans, and provosts. But the fact of the matter is that we pay equal attention to other reviews, including (for some fields) those required to obtain research grants, and (for some fields) post-publication reviews that appear in journals and other venues. We also take very seriously the opinions of ad hoc reviewers, inside and outside of our institutions, who prepare and evaluate the case for promotion and hiring. Take away the information conveyed by publication venue, and these tasks become more difficult, to be sure, but by no means impossible. And the essential part – close reading of the work by peer reviewers – remains intact.

Just as it pays for almost all of the content that goes into scholarly publication, so too does the academy – colleges, universities, research centers, and the entitites that fund them – pay almost all of the costs of peer review.

Publishers provide many useful services, but they do not provide peer review. It is the peers themselves who do that essential work.

Publishers have pushed for this bill because they fear that open access mandates will reduce their profits. If people can access the research for free online, who will pay millions of dollars for subscriptions? Lots of people, actually, but that’s another post.

Instead of baldly admitting that what they seek is protection for their dying business model, publishers argue that the NIH Public Access policy violates their copyrights. The assertion is hogwash. Copyrights belong to authors before they belong to publishers. Authors can license their work however they please; the fact that they have traditionally signed over all of their rights to publishers without compensation does not mean they should continue doing so. Indeed, the case can be made that those who pay the authors — including public entities such as NIH and NSF that support research — could require assignment of some or all rights as a condition of receiving the grant in the first place. I wouldn’t favor such a policy, but it’s fatuous to suggest that Congress should limit the scope of contracts between grantors and grantees.

Allan Adler, VP of the Association of American Publishers, issued a statement in which he had the gall to say that “Government does not fund peer-reviewed journal articles—publishers do.”

That’s just not true. The NIH spends over $28 billion in taxpayer money annually to fund research. Researchers write articles about their findings, and their peers review those articles, without compensation from publishers. Without the research, there would be nothing to publish. Largely due to historical accident, publishers manage the peer review process, helping journal editors to badger referees into reviewing articles, generally for no pay. The value of the scientific expertise that goes into refereeing dwarfs that of the office expenses incurred by publishers in managing the process. The referees’ salaries are paid by universities and research institutes, not by publishers. Basically, we have a system in which the public pays for the research, the universities pay for the refereeing, the publishers pay for office work to coordinate the refereeing, and also for some useful editing. Then the publishers turn around and sell the results back to the universities and to the public who bore almost all of the costs in the first place.

The people of the United States pay good money to learn about the world. It would be a travesty if Congress decided that the interests of a few publishers were more important than the research investments of the American public, and that’s exactly what this bill would do.

My reasons are all related to a general point of view about commerce, one that is highly unoriginal (having, famously, been well articulated by Adam Smith in 1776) but powerful nonetheless. The profit motive often leads to great things, and also to good small things. It’s useful to have people out there trying to make money, especially if they are trying to make money by creating works of value, rather than by defending business models and manipulating legislatures to preserve monopolies or squelch competition. As I cannot imagine anything that I write on this blog providing the key to anyone’s predatory monopolies, the remote possibility that what I write could be used in a way that would generate monetary value carries with it the associated possibility that it will be of social or personal value to a user or a reader. The more use the better, and the more that people are looking for customers and users, the better.

I also have a more political motive. I have been known to criticize the behavior of publishers from time to time, but I would not want it thought that I am generally opposed to commerce, or commercialization, and I fear that some people involved in commerce see the “Non Commercial” license as synonymous with “anti-commerce.” It’s okay with me if someone makes some money from my work, even when I don’t. And if the new use is clever or innovative, that’s even better.

The second reason, also closely related, has to do with my attitude towards copyright law. If you believe, as I do, that the purpose of copyright is to “Promote the progress of science and the useful arts”, then it is more important that the work be out in the world being read, and contributing to a larger discourse, than that strangers not be able to make money from it. One maximizes the influence of the work by maximizing potential uses of the work, recognizing that commercial uses have just as much power to promote progress as non-commercial uses, and recognizing that the constitutional basis of copyright — authorizing Congress to grant monopolies for a limited period — contemplated such uses from the get go. (Of course, the limited period has become a bad joke.)

I should point out that under this strategy – the maximizing influence strategy – one would never sign away exclusive rights to one’s own work, because exclusive rights drastically limit the potential distribution channels, and the potential impact.

So, if anyone can make money from this posting, have at it!

The second point is that, according to the Times, Cambridge University Press licenses pages for electronic reserves at 17 cents per student per page, for up to 20 percent of a book. The marginal cost to Cambridge of permitting such use is the billing cost, so the 17 cents is essentially all profit. If a student is willing to go to the effort, of course, she can take the book out of the library, and photocopy the pages for five or six cents each. The photocopy alternative is not as useful to the student as the scanned version on the course site, but note that Cambridge bears exactly none of the costs of making the scanned version available; Georgia State bears that cost.

Digital technologies have the capability of greatly reducing the overall social cost of making scholarly materials available to college students. Cambridge’s mission statement would seem to suggest something other than the lawsuits as a principal mode of engagement with other institutions of higher learning: “The mission of the University of Cambridge is to contribute to society through the pursuit of education, learning, and research at the highest international levels of excellence.”

Things have come to a pretty pass when academic institutions sue each other over academic matters. Even if the publishers prove to be right on the merits, the lawsuit ought to be the last resort, and student use of academic materials produced by academic institutions ought be priced at something like marginal cost, rather than at the price that maximizes profit. And one wonders why three rich and distinguished institutions would go after an urban university that is much less well-resourced.

There are any number of details that will have to be worked out before we know how the mandate will be implemented, and we will probably never know the precise effect on the world of scholarly publishing. But the vote of the Harvard Faculty of Arts and Sciences makes a point that should be widely applauded in the academy. Harvard University Librarian Robert Darnton put it well in his op-ed before the faculty vote:

The motion before the FAS provides a way to realign the means of communication in a way that will favor learning. It will be a first step toward freeing scholarship from the stranglehold of commercial publishers by making it freely available through our own university repository. Instead of being the passive victims of the system, we can seize the initiative and take charge of it.

What almost all faculty care about almost all of the time is the dissemination and use of their work, not its commercial consequences. We have always known this, of course, although organizations that purport to speak for the interests of authors frequently place inordinate emphasis on authors’ commercial interests. What the Harvard faculty has done is give us all a visible and powerful affirmation that what really matters is academic work itself, and not the profitability of particular industries that have grown up around it.

Faculty time and effort, in research, writing, and reviewing, are by far the most valuable ingredients of scholarly publication, and there is enormous scope for universities and faculties to reclaim publication and the associated profits from commercial enterprises. The problem of limited, over-priced access to scholarship is a big one, and the more different ways we try to fix it, the better our chances that a few of them will work. The declaration by Harvard’s faculty focuses on one strategy — mandated (or at least default) deposit into institutional repositories. But more important than the choice of strategy, the declaration reminds us of how much is at stake and why it matters.

It is somewhat troubling that some academic publishers and academic societies have expressed concern that the Harvard mandate will put them at mortal risk, while merely trimming the profits of the big commercial publishers. Plainly, we in the academy have an interest in robust nonprofit scholarly publishing, but we should not fall for the idea that the only way for nonprofit publishing to survive is through policies that assure huge profits to the big players. (There is an analogy to agricultural policy here. In the name of preserving the “family farm,” governments around the world provide billions in subsidy to agribusiness.)

For now, let me repeat that the big news in the Harvard vote is that it helps all of us to focus on the main point — which is that scholarly publishing, through a variety of mechanisms, is first and foremost about making scholarship public, not making money. So, strange as it may sound coming from Ann Arbor: Go Crimson!

In 2005, when the Motion Picture Association of America stepped up its campaign against college movie pirates, officials with the trade group said that 44 percent of the film industry’s domestic losses were the result of illegal downloads on campus networks.

That statistic — which came from a report by a research firm called L.E.K. — was certainly striking. But it was also wrong, MPAA officials now say. According to the Associated Press, a “human error” compromised the study: In fact, the MPAA says, just 15 percent of the movie industry’s domestic losses can be attributed to campus piracy.

Like most humans, I am overwhelmingly sympathetic to human error. I am less sympathetic to using data that are subject to error to push people around and to lobby for draconian legislation, while refusing to make the underlying data available for study and examination. The University of Michigan asked the MPAA for their study years ago, and has also asked the Recording Industry Association of America (RIAA) to provide the data upon which they base their own remarkable claims about the prevalence of file sharing of copyrighted materials on college campuses. This university, and many others, have great expertise in the analysis of such data. In an important sense, it’s what we do. We also have a culture of openness, in which we allow others to examine and criticize our work.

The MPAA reports that it is going to have an independent third party check the original study and report on it. Here’s an idea: Why don’t they simply make the study public and let the world have at it?

Partly as a result of the deeply flawed MPAA study, Congress asked the University of Michigan to respond to questions about file sharing. We post such things, of course, and the questions and answers are available on our copyright website under “House Judiciary Committee Survey of University Network and Data Integrity Practices”.

And, as long I’m talking about our friends in the big media companies, it’s worth noting that AOL, a much bigger Internet Service Provider than all of the colleges and universities put together, is owned by Time Warner, which in turn is a member of both the RIAA and the MPAA. Surely a great deal of illegal filesharing is undertaken by AOL users. It is puzzling that RIAA and MPAA want colleges and universities to employ mechanical measures that would restrict what their students can do, but they have not pressed AOL to impose the same restrictions. (Actually, it’s not puzzling at all, but it ought to be.)