Teenage Mutant Supreme Court Judges

The consultant specialized in young people and how to sell to them. He was funny and fast, and he impressed this audience of boomer-age publishers and media people. Don’t even talk about convergence, he told them; what else have kids ever known? He evoked that world where your kids Facebook their friends, Google the school assignment, download that Lost episode and rip the new tune from MySpace, all at the same time. When they want to. On their terms.

Copyright? Today’s kids admire creativity and creative people, he said, but in their hearts they believe in the One Device, a sleek thing coming to provide everything, and seamlessly. Their reaction would always be the same: “What do you mean, I can’t do what I want with this? I already paid for it.”

The presentation was terrific. But it’s not only kids thinking this way about new media. I considered the publishers of newspapers and periodicals right there in the room. In an age when periodicals appeared one day and were fishwrap the next, they used to acquire periodical content on a one-time fee for a one-time use. Now, click on your favourite newspaper website and it offers you paid or ad-based access to practically everything it ever published. The jaundiced freelancer in me knew what the publisher would say when the writer of those stories claimed a share of that new revenue. “What do you mean, I can’t do what I want with this? I already paid for it.”

Today’s periodical publishers differ from teenagers because the publishers have lawyers ready to go to the Supreme Court on this issue.

And the Supreme Court? If the importance of being free to do what you want with the digital material in your hands is a defining trait of teenagers, we may have on our hands an outbreak of teenage mutant Supreme Court justices.

A dozen years ago, the author and journalist Heather Robertson discovered that some articles she had written and sold on a freelance basis to Globe and Mail publications were being resold without her knowledge or permission by Thomson Corporation, the Globe’s parent company of the day. In 1979, long before the Internet and online newspapers and web magazines, Thomson began selling material from its issues back to 1977 in databases (and later on CD-ROMs). Thomson was pioneering ways to make periodical content saleable forever, and all the more profitably, because it neither sought permission from nor made payment to the freelance writers who had created the works in the first place.

Heather Robertson sought redress through another innovation of that era: class action. Soon Robertson was the representative plaintiff for a whole community of aggrieved writers. Thomson responded with a blizzard of defences and a rugged refusal to settle. (Eleven years after the action began, the issue at the Supreme Court of Canada in 2006 concerned preliminary motions from the trial court.) Still, from the writers’ point of view, the case had a certain simplicity. They had no objection to seeing newspapers offer their work to new customers through new media. The writers just wanted to share in the revenues flowing from the work they had created and still owned.

As Robertson v. Thomson rose through the courts, however, that issue became subsumed into one of the hottest new jurisprudential trends of the 1990s: new intellectual property law. Questions as simple as value for money would be the least of the issues at trial.

In the mid 1990s a whole new territory, “cyberspace”—a utopian anarchy immune to the laws and customs of the old, non-digital world—was agreed to be coming into being, and many of North America’s brightest young legal scholars volunteered to draw new maps for the new world. Information wanted to be free and the new intellectual property lawyers were going to draft its charter of liberties.

Cyberspace has come a long way. Starting out rebellious and countercultural, it soon found its greatest successes were Amazons and eBays and Expedias, sites that sold stuff. The pathways of cyberspace proved to be paved with gold, and even “free” sites—YouTube, Google—became stupendously profitable.

New intellectual property law, however, still exudes a certain counterculture chic redolent of its origins. The leading exponent of new IP law, the brilliant young Stanford Law professor Lawrence Lessig, writes constantly about the threat commerce presents to cyberspace. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity is the title of Lessig’s best-known book, and its rhetorical strategy is to raise the alarm about the clear and present danger that digital technology will “lock down the culture” and stifle creativity.

Anyone who has ever fired up a web browser might assume that more culture, more information, more news and more entertainment are available today in more ways, faster and more easily than ever before, and mostly for the price of an internet connection. But for new IP law, the ease of access we take for granted is illusory. Big Copyright threatens to blight our lives and destroy culture forever, and the great task of new IP law is to stand on guard for a threatened and embattled public domain on the verge of extinction. For Lessig and his colleagues, “the fate of the commons” (the subtitle of another Lessig book) is at stake with every copyright licence.

To read the Supreme Court of Canada’s October 2006 decision in Robertson v. Thomson—of course available to anyone with an internet connection—is to see our Supreme Court keeping up with new IP law theory. One thinks of high court judgements citing leading cases and weighty legal texts, but the references in Robertson v. Thomson include an after-dinner speech given earlier in 2006 by Michael Geist, a University of Ottawa legal scholar and Canada’s most prominent exponent of new IP law.

The core ideas of new IP law dominate the Supreme Court’s take on Robertson v. Thomson. The case may have started as the freelancer who wanted to get paid versus Thomson’s “What do you mean I gotta pay?” but the judgement is based on two issues almost entirely independent of the pay dispute.

First, what is a copy? Central to new IP law is the principle that, because digital technology makes it easy to make an unlimited number of perfect copies and distribute them everywhere at no cost, there is no longer a compelling difference between an “original” and a “copy.” This slightly metaphysical concept drove the Supreme Court’s deliberations. In Robertson v. Thomson, the justices parsed the most subtle concepts of copyright law, but the issue that truly engaged them was what the majority describes as “the true essence of originality.” Maybe, they wrote, a newspaper in a digital database or on a CD-ROM is the same thing as the newspaper on paper, in which case the publishers have not made a new copy of Robertson’s work at all.

Second, what are the rights of the public domain? Heather Robertson would have been happy to see her work made available to the public as widely as possible; she just wanted to get paid for the value she contributed. The Supreme Court judgement, however, draws on new IP law’s vision of knowledge as a free public good and of a fragile public domain under constant assault. If paying writers could complicate public access to knowledge, at least some of the Supreme Court judges believe a writer’s livelihood must give way. Justice Rosalie Abella, in a minority opinion in Robertson v. Thomson, noted the threat made by the New York Times that if it had to pay writers when it sold their work through a database, it would strip those works from the database. News databases, Abella observes, “are a primary resource for teachers, students, writers, reporters, and researchers.” ((This and subsequent quotes come from Robertson v. Thomson Corp., 2006 SCC 43, [2006] 2 S.C.R. 363 scc.lexum.umontreal.ca/en/2006/2006scc43/2006scc43.html. )) Her conclusion was that the law must submit to the Times’s electronic blackmail. Better to let writers be plundered of their rights than allow anything to complicate public access.

Driven by this vision of what new IP law was about, the Supreme Court of Canada’s ruling in Robertson v. Thomson addressed issues a long way from anything that might preoccupy a freelance writer just seeking to get paid.

In the matter of Robertson v. Thomson, the Supreme Court’s findings may have given more comfort to Robertson than to Thomson. “The central issue on this appeal is whether newspaper publishers are entitled as a matter of law to republish in electronic databases freelance articles they have acquired for publication in their newspapers … In our view, they are not,” declared the majority. It remains Canadian law that you cannot simply appropriate other people’s intellectual property for your own profit.

Once the issue became Heather Robertson versus the public domain, however, or Heather Robertson’s need to get paid versus the judges’ elaborate calculations about “the true essence of the originality” of various copies, the results were less clear. Indeed, many arguments deployed by Thomson’s lawyers against the Robertson claims would apply as well against Thomson’s own copyrights. If a newspaper can appropriate all the profitable aspects of Robertson’s work every time it finds a new technology able to make a cheap and perfect copy, she had better find a new line of work. (Robertson has mostly worked as a book writer in recent years.) But if public interest justifies Thomson Corp.’s appropriation of writers’ copyright, it may also justify the public’s appropriation of Thomson’s copyrights. (Thomson Corp. has been getting out of traditional publishing in order to focus its business on digital delivery services.)

Perhaps the most evident strangeness in Robertson v. Thomson is the majority conclusion that when Thomson uses Robertson’s work to create and sell databases of articles, then Thomson will have to pay and go on paying her, but when Thomson sells the identical story in a CD-ROM version, it could sell it forever without paying her a penny. This the court explained as “media neutrality.”

It is hard to see “media neutrality” in getting paid when the paying customers take delivery of your work in print and getting paid when the customers take delivery through a digital database, but not getting paid when the customers buy your work on a CD-ROM. But the Supreme Court majority found the new IP law logic in this. A database, they declared, is something other than a newspaper because a customer explores it article by article. But when the newspaper is recreated on a CD-ROM, the judges found, it retains the true essence of the originality. The CD-ROM “is” the newspaper as created and copyrighted by Thomson.

Indeed, wrote the judges, a run of The Globe and Mail on a CD-ROM was the same thing as “a stack of newspapers on a shelf.” (The quotation is actually from the minority opinion written by Justice Abella, who rejected the majority view and argued that the database as well as the CD-ROM should be considered identical to the newspaper itself.) If Thompson did not have to pay Heather Robertson when it stacked old papers on a shelf, it should not pay for “stacking” them in a CD-ROM, said both the majority and the minority.

Anyone who grew up with the evolution of new IP law in the last decade may find the judges’ logic compelling. No matter that CD-ROM delivery offered Heather Robertson’s stories for sale to new readers long after the printed text had mouldered on the shelf, or that digital copies, unlike stacks of old newspapers, can be resold for years, all over the world, in the blink of an eye. The metaphysical idea of the true essence of the originality of a newspaper lies at the heart of new IP law theory, and at the heart of the Supreme Court judgement.

It is hard to imagine Heather Robertson was much interested in the true essence of originality when her suit was launched. Her class of writers just wanted to share the revenue as their work went on selling. In, say, book publishing, this would be entirely traditional. As a book goes on selling, publishers make ongoing payments to the author. Although the whole point of a paperback or foreign edition is to conserve the true essence of the originality of the work, separate rights sales, separately priced, are the norm for such additional markets. But the concept of royalties based on ongoing sales, centuries old in the book trade, remains new and troubling in periodicals. Like judges, periodical publishers still have difficulty with the new economics of digital commerce.

In January 2007, Maclean’s columnist Paul Wells reported on his blog that www.macleans.ca was rapidly expanding because, as editor Ken Whyte put it, the owner had realized that it “makes a lot of money on this internet thing and that it should seek to do more.” In February 2007, when CanWest announced it had purchased The New Republic, it promised to make the American political review into a moneymaker “in large part because of website revenues.” Magazine publishers remain eager to sell high and buy low (buy free, in many cases), but the market Heather Robertson foresaw in 1995, in which digital information is genuinely valuable, has arrived. The Supreme Court remains largely immune to that realization.

In Robertson v. Thomson, there is one very brief reference to the economics of copyright: a rebuke to the trial judge for “attaching significance to the publishers’ creation of a different economic activity.” But even as legal theorists were launching new IP law on the vision that ideas have only the value of any particular copy of them (that is, almost zero), economists were launching “new growth theory” on the understanding that economic growth is largely driven by innovation, by ideas. New growth theory seeks to measure the economic contribution of ideas just like other goods. In his recent exploration of the economics of ideas, Knowledge and the Wealth of Nations: A Story of Economic Discovery, economic journalist David Warsh explains that for new growth theorists, “the economics of creating ideas were very different from those of making things.” Ideas, now the most valuable thing in the world, depend critically upon mechanisms that support their production.

New IP law theory suggests that copyright must be defined in litigation, since only judges can assess the intention of the person making each specific copy or determine the true essence of originality conferred by new technology. New growth theorists more often assume that ideas are a good whose value is best determined in markets. Beyond the courts, this idea is making headway.

Consider Google’s ambitious and exciting campaign to scan the whole text of every book in existence. As legal journalist Jeffrey Toobin reported in The New Yorker in February 2007, Google is investing US$800 million to make available on your laptop an instantaneous digital index to everything ever published in book form. Type in a phrase, see where it appears, in every book in existence.

Publishers’ organizations and authors’ organizations have sued Google, and the judicial hearings have had a new IP law buzz reminiscent of our Supreme Court’s debate in Robertson v. Thomson. Like Robertson, the publishers and authors do not deny the value of the Google project or seek to prevent it. They have built their case on the great potential value of this Index to Everything. “Google is saying the value of the right to put books up there is zero,” Authors Guild executive director Paul Aiken told The New Yorker’s Toobin, sounding as if he had talked to some of Warsh’s economists.

Advocates of new IP law, certain the value of a digital copy is zero, stigmatize the publishers and authors as Luddites stifling progress and locking down the culture. But Toobin reports that Google looks likely to settle with the publishers and authors. All they are really fighting about is price.

Both sides agree that an Index to Everything would be fabulously valuable, and no doubt fabulously profitable. Now they may agree to share the value. The idea is that Google will pay for a licence to scan copyright works, perhaps through a collective licensing arrangement. Instead of pricing the contents of the Index to Everything according to the cost of giving a look at it (zero), Google would devote part of its revenues to rewarding those who actually created the value in the first place.

The only people alarmed by a market solution to the Google case were the new IP law theorists. Toobin spoke with Professor Lessig and his colleague Tim Wu of Columbia Law School, who argued from classic new IP law premises that such an agreement would threaten the public interest, which they identify with having digital information priced at zero.

Where new IP law argues that the price of information should be determined exclusively by the cost of copying it, new growth theory argues that the way to stimulate new knowledge is to allow for the cost of producing it. The economists’ idea seems to be guiding Google’s negotiations with publishers and authors over the Index to Everything. It is as if someone at Google had been reading new growth theory. Sergey Brin and Larry Page may be young, but apparently they do not think like teenagers. Or, should we say, like judges?

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