But what happens when this kind of risk-aversion is systemic? Josh Gans reports on the case of academic publishers and estates. Joseph Thomas has been having problems in getting his biography of Shel Silverstein published. Fair use exclusions allow extensive quoting from published work for scholarly purpose. So you don't really need to seek an estate's permission to quote from published work. You'd need permission to access their proprietary archives, but not to copy a song lyric or a stanza from a poem in discussing the author's work. But that doesn't matter where a defense could prove costly for a publisher with shallow pockets. Unless they can be pretty sure that they'd win and that the court would award costs, why take the risk? Here's Gans, from whom I quote extensively:
Returns to publishers aren't going to be rising anytime soon. Further, that would be a specific fix to a more general copyright problem: expected penalties for bogus claims are pretty slim. And so automated bots can issue DMCA notices with high false-positive rates and impose costs on ISPs and websites without particular sanction. Were there sanctions for filing false reports, or for bringing spurious copyright claims, we might expect fewer of them. And we might expect publishers to start being willing to take the punt where they think the author is in the right.
Many years ago, I tried getting a project through Canterbury's Ethics Review Board. They wound up killing the project. Not directly, but after the almost year-long process where they agonized over that our project involved deception, followed by finding out we'd have to go through the same rigamarole at the coauthor's university, we just abandoned it. But here was the project. Imagine this circa 2005.
We identified a set of academics around the world, some at universities with law schools, some without, some public, some private, who'd be willing to host a copy of Thoreau's essay On the Duty of Civil Disobedience on their faculty website. We'd contacted some of them, but didn't see great problems in getting a decent set of these up. We then were going to send out bogus copyright take-down notices to their universities from a newly formed Henry David Thoreau Society which also was to have a website with that work, among others. The 1849 work was clearly in the public domain everywhere. We wanted to see how many universities would cave in immediately, how many would at least have their webmaster get in touch with the named academic, and whether places with law schools as repositories of free legal advice might have been more willing to bear potential legal costs by telling us to get stuffed. And all the other correlates (academic seniority of the faculty member's website, type of university, legal jurisdiction and so on) would have been pretty interesting too.
I still spit whenever somebody says Ethics Review Board. I mostly now just avoid doing anything that needs anybody's approval. Who needs the hassle? So I can get why publishers might want to avoid copyright court hassles. But the net effect is pretty cruddy.
We need more judges like Otis Wright. Explicit penalties for folks using bogus legal threats to chill protected speech could be helpful.