>> it's about 50 minutes. >> okay, good morning, everybody. my name is maria, and i am the united states register of copyrights and the director of the u.s. copyright office, and i'd like to say at the outstart that for me this is a very wonderful privilege because, as you may or may not know because of the long history of copyright law in the library of congress, this jefferson building is quite

literally the house that copyright built. and with that, let me start by just introducing briefly the distinguished panel that we have. their bios in depth, of course, are in the program and online. but to my immediate left is tom allen who is a former congressman from maine and is presently the president and the chief executive officer of the association of american publishers. to his left is james shapiro who is a professor of english and a shakespearean scholar and author and vice president of the authors' guild. he's a professor at columbia university. thank you for coming down from new york, jim. and did you also come down from new york? >> this week i was here. >> this week you were in washington. you're everywhere. and to james' left, we have peter jaszi who is also an author, and i will say although

peter does not want me to, was recently given the great honor by his colleagues at the washington college of law to have a lecture named after him. congratulations, peter, and thank you for joining us. [applause] so our topic is copyright and the book, very small topic. [laughter] copyright and the book: authors, publishers and the public interest. and i wanted to reflect on the title for just a moment because copyright and the book is, at its core, a discussion about the public interest with authors and publishers as part of the public interest. and i would underscore that because i think sometimes in system of the more recent -- in some of the more recent conversations in political circles it's sometimes teed up as a conversation where authors and publishers are somehow antithetical to or at least in competition with the goals of the public. and that is not the foundational history of copyright law in the

united states. so today we're going to have a discussion about how the book brings together or brings into focus all of the important societal goals with respect to copyright law; incentivizing authors, valuing publishers, serving readers and protecting freedom of expression. but we're also going to talk about how changes in the book industry including new formats, new methods of dissemination and consumer expectations are revealing the need for legal change. and now many people talk about the need for copyright reform, and people mean different things when they talk about it. but i will say from my perspective on behalf of the u.s. copyright office it is clear to us that many provisions in the copyright act require review and updating, and the great challenge is how we reflect the digital age in which we live with the foundational principles of a copyright system as laid out in the constitution.

and so with that i'd like to start with the very thoughtful professor on the end and say, peter, could you say a few words about how evolution of the book may be a cause for both progress and tension in the copyright law including for such long-cherished tenets of, say, the for sale doctrine? >> i will do my best. thank you. thank you, maria, for the very generous introduction and for the invitation itself. it's tremendous and really a very special pleasure to be here today talking to this audience in this space about this subject. the other thing i like about the framing of this panel is that it relieves me of a problem that i often have when i talk about this topic of copyright and the public interest. that is, what to call the mass of individuals whose individual

and collective well being is implicated in the constitutional language that frames our copyright system and in everything that courts have said over the years about copyright policy and its ultimate public objectives, as maria has described them. it's a problem to call them users because it suggests a role that i think is too passive. the same is true, perhaps even more true of consumers. citizens is a little vague and, perhaps, sort of overinclusive. but today i don't have to worry about that. i can just say that we're talking about a public of readers, and those are old readers and young readers, they are sophisticated readers and casual readers, they are sighted

readers and blind readers. all readers together. so to begin, what do all these readers like about printed books? as i was trying to think of themes here, i went to the wonderful elizabethizeen stein's new book, the response to print in the west from first impressions to a sense of an ending -- now out in paperback, i'm happy to say -- [laughter] and the professor suggests two answers to the question what do readers like about the book drawn, of course, from the history of the early reception of print. and one answer, i think, is that readers from the very beginning, from the 15th century forward have responded very positively to the fixity of the book, the

apparent stability of printed pages bound between stiff material gives to text and their meanings. she writes: printing came to be known as the divine art partly because it was regarded as the art which preserved all other arts. but somewhat paradoxically, as pointed out, early readers -- like readers today -- also valued something different can about the book, what might be he referred to as the velocity of print, the ability to multiply copies meant that texts and their meetings could and did move with new speed from hand to hand and mind to mind. that the book was both literally and figuratively unchained by this innovation in the mode of production. and here if i have slides, which i don't, i would show the slide of the old hand-copied volume

chain today the desk -- chained to the desk of the monastery in order to everyone or size my point. the professor cites the early cleric and editor debuts si writing in 1468 for his association of print with the generous act of sharing what was hoarded. so we've got the fixity on the one hand which is very appealing to readers and we've got the velocity of print on the other hand which which has associated, equal and sometimes contradictory appeal. so it is fair to ask what does copyright have to do with all this? and i think later we'll have a chance, i hope we'll have a chance to talk about the ways in which many decisions that have been taken over time and will be taken in the future about copyright policy either enabled

or potentially disabled the survival and the flowering of the book. but i want to talk about just one of the default settings of anglo american copyright law, one that dates from a time long before we had a name for it. that is the rule that after an authorized first sale, as we would say today, of a particular copy of a book, the copyright owner generally has no residual authority to restrain its subsequent alienation whether by further sale or by gift or by lending or in any other way we can imagine. this venerable, even ancient rule was affirmed by the united states supreme court in 1908 and reaffirmed by congress in 1909 and again in 1976. but however old, first sale is no mere accident of history.

the doctrine is consistent with broadly-shared social values of freedom and awe on autonomy andh the, as maria mentioned, the instrumental goals of copyright to encourage the creation and the broad dissemination, primary dissemination and secondary dissemination of knowledge. over time by keeping copyright within bounds including the bounds imposed by the first sale doctrine, we've been successful in sustaining and even perhaps accelerating the velocity of print. and there have been all sorts of important effects from fomenting political change to reinforcing literacy to fostering a truly popular culture. first sale has also given us great collections of books and manuscripts like the one we are present in today. and it's given rise to essential

public cultural institutions that serve the reading public directly; first, private circulating libraries and then over time academic and public-lending libraries. and i want to argue perhaps more controversially, by helping to make the reputation of writers whose popularity grew as their books passed reader or to reader. first sale enabled the emergence of the professional author as we know that institution today. so now first sale is under siege. we hear more and more complaints about used book sales, online, and we wait to hear what the supreme court is going to say about the application of first sale to foreign-made books when it decides mcgraw-hill v. or -- [inaudible] if the plaintiffs in that case prevail, the doctrine will be significantly restricted. but whatever the result, i think

we can expect a new round of legislative activity on the issue. there will be a winner, there will be a loser, and somebody is going to move for a congressional adjustment. and i suspect the proffered amendmented to the copyright act will propose, for example, that the united states follow the example of european copyright laws, copyright laws in countries that do not share our overarching commitment to promoting the circulation of useful knowledge by further restricting or further conditioning the doctrine. so i hope that many, if not all, of the participants in the system by which books are produced and consumed in the united states will be able to join together to resist such erosion to a doctrine that has generated so many benefits and has so many more to offer. and lest we forget, steven colbert is watching. [laughter] in seriousness, i'd like to conclude by suggesting that in

coming months readers and those who care about their interests need to do more than simply defend the first sale status quo, as it were. we also need to urge, again, the responsible expansion of the doctrine to books in digital form which embody the same virtues of fixity and velocity that we associate with printed books while also enjoying a special comparative advantage, their durability and persistence. after more than a decade's experience, it may be time to revisit the conclusion of the copy right office and the ntia ask and their so-called section 104 study that a case had not been made for a digital first-sale doctrine giving the buyer of a book in digital form the right to pass it along to another individual while simultaneously deleting it from the memory of the device in conjunction with it was originally purchased. business models built on a

vision of tethered e-books effectively disposable objects that are chained not to a monastery desk, but to a particular transaction may make short-term sense, but they ultimately fail to promote the interests of readers in access to information which enjoy constitutional primacy in the united states copyright system. thank you. >> thank you, peter. [applause] so let's broaden the discussion a bit can and, tom, i'd -- a bit and, tom, i'd like to turn to you. let me say the first u.s. copyright act protected books. books were the primary point many some ways drawing on the protections the states had already put in place. and you may know that the first federal rebelling straight was also for a book, a spelling book in 1790, a registration that's near and dear to my heart, of

course. and i would just say today your members, publishing houses both large and small, operate businesses that sometimes look like gambling financially. and could you talk a little bit about what it's like to be a publisher these days, and how do publishers approach copyright? is it more than making money? >> thank you. [laughter] thank you, maria. i want to say at the beginning i have given a lot of speeches, and i've listened to a lot of speeches of varying quality for a very long period of time. rarely have i listened to a speech and thought immediately i wish i had written that. but there's one i want to quote to you. since the very beginning of our nation, publishers have been guardians of free speech, stewards of scholarship and education, disseminators of scientific discovery and champions of literature. however one defines a knowledge

economy today, it could not have emerged and is not worth sustaining without the production and distribution of books, journals and other professional content. it goes without saying that wherever there is publishing, there is copyright. senator kenneth keating once called copyright the jugular of the book--publishing industry. -- book-publishing industry. now, when maria said that earlier this year, i thought i've got to use that, i have to attribute it, of course -- [laughter] to her, and i certainly would not do otherwise. but it seems to me to sum up very much what i have heard since i sort of walked into this position at the aap three years ago. there are a lot of publishers who, frankly, care a hot more about making -- a lot more about making books than they do about making money. but in this climate and given the structure of the industry, there has to be a return. finish and one of the, one of the big six, one of the ceos of

the big six did say to me i gamble with other people's money. that's particularly true of the trade sector, the consumer sector where every book is different, and you don't know what's going to work and what is not. but it also applies to some extent to the educational sector as well. the publishing industry's not one industry really. i mean, everybody in the industry cares about copyright because it is the jugular. but there are enormous differences between the trade sector, the fiction and nonfiction we buy in bookstores, and between what goes on in the k-12 market where sales are made to 14,000 school districts. and that's very different from the higher ed market where sales are made to individual students primarily on the recommendations of faculty. and that's different from the scientific and technical and medical fields where it's more the -- well, frankly, sales of

mostly digital, mostly to people who are already in those, working in those areas. so we have a whole range of different issues, and i want to say something about a few of them. i do want to say since i have my own book coming out shortly, i have learned something very important. publishers really matter. [laughter] they do two things. one, they have done it with my book, they have lifted the quality of the final product and, two, dramatically extended its potential reach so that more people -- i have no idea how many, but at least a few more -- will be able to read what any author publishes. i think that the copyright issues today come up between enduring tensions on the one hand between the creators and disseminators of content and the users of content. i believe there is now more material for a lower price, more

widely available than ever before. and that is the great benefit of the digital revolution, the digital transformation. on the other hand, that transformation has allowed other industries to rise up as they have different interests. amazon, apple, microsoft and google are important companies, they're big companies, they are frenemies to publishers because we have business relationships with all of them, but on the other hand they extract a toll for getting our content material to the reading public. and, therefore, i think there are, well, differences of opinion that occasionally arise, as you might have heard. one of them, i'm going to talk about two areas where we have, we have current issues that are of great significance. one is fair use in the academic environment.

as some of you know, three of our member publishers sued georgia state university because when georgia state moved its from printed course packs as materials for higher education courses to e-reserves, they made another change. they stopped paying a penny for anything put up on e-reserves no matter how, how long it was. and since 2006 not a penny has been paid. and because georgia state was, in the view of publishers, an outlier in that respect because we have understood and we think many people have understood that copyright is agnostic or same rules would apply whether we're talking print or digital, that's what led to this particular litigation. and i would say that there this -- we know there's all this vagueness and difficult any the

deciding what is fair use. and you can run through four factors, but the bottom line, this is hard to figure out in many cases. but some cases are clearer than others. in the cases where large amounts of material are being used semester after semester after semester not paid for if any amount no matter how long the length, that becomes an issue for copyright, for copyright owners and for both the, both for the publishers and for the authors. and that is the gist of why that case was brought and why it is still continuing. our view there was that whatever fair use means, it doesn't mean that everything is free, it doesn't mean that there is a difference, a fundamental difference between printed material and digital material, and it doesn't mean there's a fundamental difference between a

private college and a state-run university. the latter we actually did succeed on at the lower level. the second area i'll talk about is kurt's thing, this first sale doctrine. and i've seen some critics say, you know, this is an area where, in fact, justice breyer i think in the argument in the supreme court said, well, what if a husband brings back a book that he has bought overseas and gives it to his wife? is that a violation? the answer is that's not the case. don't worry about that. there's a reason why there haven't been first sale doctrines brought on a regular basis or brought into, certainly, risen to the supreme court level. and that's because in most respects it doesn't matter. libraries can sell their books. this is not an issue. the difference is it was an

outlie year, because this was someone who over a period of years bought up the copies, the international copies of some of john wily and sons' product for international sales, imported them here and made profits pushing close to a million dollars. now, why are there different prices, and i'll end with this, why are there different prices overseas and here? the basic reason is the materials that are produced here that are largely, where the cost is largely recovered here, cannot be sold overseas. an overseas market, particularly in the developing world, for the same price they're sold here. and, therefore, just as in the pharmaceutical case there are reduced prices precisely to expand the market and, we believe, to extend american educational products, american higher educational projects, the

best in the world to places where they would not otherwise exist. that's where, i think, the first sale doctrine touches the public interest. because i don't believe americans really want to create disincentives to educate the rest of the world, and i don't think that makes good policy for the developing world, and i certainly don't think it makes good policy for an industry that is a very important export industry. i mean, that's what book publishing is. we are an export industry. american products are among the best in the world. there's a market overseas for these products, and we have to find some accommodation. so what i would say in conclusion is these issues, there's anxiety always as you make this kind of transition from relying entirely on print into a world where we have to produce both print and digital products. there's anxiety about business models, there's anxiety about

copyright, there's worry that there is a culture so much that we get online is expected to be free. all of those are worries. but we do not have to dot every i and solve every case with a specific rule. we can live together as long as there is respect both for the needs of the public, the needs of readers or and the needs of the authors and publishers who bring these important products to the market. thank you. >> thank you. thank you, tom. [applause] jim, you're here both as a scholar and a representative of the authors' guild, and the authors' guild, of course, the oldest and primary organization that represents published book authors in the united states, about to celebrate its hundredth birthday. the celebration is open to the

public here on tuesday here. i guess, jim, what i would say is the to have is the center of the copyright system. mentioned in the constitution, primary beneficiary of exclusive rights. and yet sometimes really invisible to the public in conversations about copyright. last year in an op-ed piece for "the new york times" you wrote the following: a rich culture demands contribution from authors and artists who devote thousands of hours to a work and a lifetime to their craft. so what would you say is at stake with the professional author in copyright? >> i should say at the outset that i'm not speaking for the authors guild. i'm a vice president of it, but they'll probably be miffed if i get too excited speaking both on behalf of and as an author today. so these are my remarks. and i should say before with i turn to what it is to be an author, i should speak about what it means to be somebody who

uses libraries as we're here at this great, great national and copyright lie prayer. library. when i was 14 years old, my dad sat me down. my dad's an educator, and he said you'll likely spend your life either in a library or a laboratory. decide. [laughter] and i was a very confused and poor student at that time, and four years later as a work-study student in college i found myself getting up at eight in the morning and reshelving law school library books at columbia's law school with a lot of sleepy-headed, hungover -- [inaudible] and i was with thinking, is this what my dad had in mind? [laughter] he was savvy about it, and i did choose libraries. and i've spent pretty much my entire adult life in libraries, at the british library, the huntington and right next door

here at the folger library where one of the board of governors and -- i love libraries, and it's a real honor to be here at the library of congress where i've done research as well. everybody on in this panel is an author, and everybody else on this panel is a lawyer. i am not a lawyer, so i'm a little out of my depth speaking about copyright and about the nuts and bolts of that. and i should also say that i've been witness to and more recently party to some of the various court cases that have come up about copyright and the protections that our founding fathers, as you noted, tried to secure for authors in their writing. and i'm increasingly feeling that these legal cases and the way they've been covered in the press have obscured some of the fundamental issues facing

authors. and i've also felt that some of these concerns are either willfully ignored by librarians and judges and a culture that is intoxicated by that word we've heard a few times, it's almost orwellian to me the culture of free and what the culture of free means for authors who have to make a living writing books. the situation facing writers, and i'm not speaking of best sellers here, is grim and getting grimmer for reasons familiar, i think, to all of you but worth repeating here today. for most writers i know, the math is pretty simple. earn enough of an advance from a publisher to cover expenses, and if you're lucky, put a little bit aside before you draft your next book proposal. and for the past century or so, this has worked for most writers because there's been a collaborative process that's involved courts and congress

protecting authors' rights, bookstores, brick and mortar bookstores selling books, librarians purchasing them, publishers paying for them and profits from their investment, all working well or well enough together. this system is, insured that there was an incentive for novelists and nonfiction writers to take on ambitious subjects, books that might take years to conceive, research, write, revise and publish, books that are fundamental to a thriving democratic culture. but in our current age of scarcity and increasingly threatening monopoly, these interdependent relationships are strained if not already broken. and those who are suffering the most from this, to my mind, are writers. over the past decade especially, there's been a drip, drip, drip of changes to this longstanding and flexible system that has eroded the security of writers. and i should say that rulings to

one part of the system that willfully ignore other connected parts -- and i'm thinking in particular here of the recent department of justice case that was brought up in the previous panel -- eager to pick low-hanging fruit has been, from my perspective, potentially devastating and without question wrongheaded. librarians anxious about tight budgets and storage issues and responding to how users prefer to access material electronically as you all know, responding by sharing books between branches and in the case of university library systems between cam putses -- campuses. that's all well and good when i wear my professorial hat. but as an author and friends of many authors who a decade ago could count on a thousand sales to libraries and now can count on perhaps 250 of those sales, they are now going into their publishers, university press publishers and being told we can

no longer publish your book even though they're committed to publishing monographs because the numbers are no longer there. university presses themselves are shrinking in number. commercial presses are now combining, and we may be facing only two or three commercial presses in the next few years. but that means for authors -- what that means for authors is that the days of auctioning books is over, the day of taking a controversial book that's turned down by those two or three major presses and may not find another press to publish them are increasingly near. my sharpest criticism for me as an academic is closer to home. it's to universities who with their libraries are in bed with google, who have without permission copied, digitized and stored my books along with millions of others which they have no legal right to do under the banner of fair use. and they've even started a program to distribute what they call orphan books until it was

pointed out that these books are, of course, not only in copyright, but in some cases their authors are still alive. i'm speaking specifically here about the case that has resulted in the trust court case in which i am a plaintiff and which i very much hope goes to the supreme court. it's, to my mind, an exemplary case of the erosion of copyright protection on technical grounds that ignores the rights of authors, our founding fathers sought to protect. i served on prior committees for national book award, i regularly serve on committees for fellowships for books in progress, and i must tell you that the ambition of books is shrinking. the kind of big books that take years to investigate and write, books that are really at the center of our serious cultural conversations are fast disappearing. and they're disappearing because writers can no longer afford to take them on.

i have conversations over lunch or coffee with prize-winning novelists who are now turning to write for hbo or tv because their publishers can no longer take them on and their works. i speak as a dinosaur, one whose books having incredibly well-supported by publishers and whose future books are all sold, so i'm not in the position of facing a situation where i cannot afford to research and write a book. but younger writers do. my major fear regarding the resolution of the happy trust cases is not that the summary judgment will not be overturned. i'm confident that it will be. but my real fear is that with the university of michigan and other libraries storing millions of books, that these books will be hacked. and i really do fear that the resolution of that case will be moot. because we run the risk of having all those works under copyright with the royalties

that go to publishers and authors from them being circulated through piracy or through a disgruntled employee taking advantage of that. let me, let me conclude by saying in all the small bore arguments about fair use and digital copying and the battles between publishers and behemoths like amazon and google is the wisdom and the intention of our founding fathers -- many of whom were authors -- who understood the importance of authors to a democracy and so enshrined within article i of the constitution language that grants the congress the power to -- [inaudible] of authors. not google, not amazon, not libraries or even publishers, the exclusive right to their respectiving with. that's their language, not mine. but it also suggests it recognizes the need for authors to be free from being subsidized financially by states, patrons,

universities, corporations, even ads in books that might compromise the independence of their work. and their language suggests that copyright would thereby insure a diverse range of independent publishers and booksellers that would further guarantee a full range of perspectives in the marketplace of ideas. these, too, are under threat. i'll just finish by saying when i was 14, i also read a story that has stuck with me and comes back to me every time i sit down and talk with despairing writers. it's about a farmer and his horse. and that farmer thought he would save some money by cutting that horse's rations, so he cut the rations in half. the horse or looked a little thin, moved a little slow, but he still made it to market. the farmer thought, oh, that's so good, i'll keep cutting those rations, and he kept cutting them and cutting them and, of

course, dragged the goods to market. and just when the farmer got it to a price point where it was just ideal for him, the horse went and died. and that, i'm afraid, may be the end of the story for writers. thank you. [applause] >> thank you, jim. okay. so we have about ten minutes, and unfortunately, we have nothing to talk about. [laughter] i'd like to, i'd like to have you speak amongst yourselves, but i'd like to tee up just one question because i think it's a theme, certainly a theme in the broader copyright community, and it's come up here already. fair use is, obviously, a cherished principle of not just copyright law in the united states, but american democracy. i think we can agree on that. in recent times, though, is it the case that fair use as a

mechanism for access as become preferable to access through, say, licensing? is it because we're protecting fair use as a doctrine, or is it a budgetary issue for some institutions? is it a feeling of entitlement? why are we having such tension between fair use licensing and access? if you could speak to that. >> well, i actually, i'm not convinced that the tension you describe is, is present. let's take the example of the case that james was talking about, and i have to speak cautiously because i'm a lawyer in the case. so i, i need to be guarded in what i say. but i think i can say this, that one of the propositions that

undergirds the summary judgment decision which i feel, obviously, you know, different about the likely disposition on appeal from james is that, in fact, there was no licensing alternative available to create a universal corpus of digitized materials which which would thee available for a range of what -- at least in the view of judge baer -- were entirely legitimate and positive purposes, including the ones with which my clients were particularly concerned; that is, a solution to the really terrible book famine that affects blind scholars, students and academics. and so i think that the fair use issues that we hear about are

not so much rejections of proffered licensing solutions as they are assertions of what has been from really almost the beginning of our copyright system a strong, countertrend to the trends that tom and james have discussed so eloquently, the protection of publishers, the protection of the community of authors, and that is the paramount interests of end users and the institutions that serve them. i don't think that fair use as it is being articulated in cases like the georgia state case or the authors guild trust case is the equivalent of the culture of free.

i think that that is both -- at least an overstatement if not simply a misstatement of the positions that the defenders of fair use in those cases have taken. i don't believe that the position of georgia state or of any other responsible library institution -- and, obviously, i'm not in that case, so i can't, i can't speak directly -- is that every online use of content for course support purposes should be free. it's certainly not the position of any responsible academic promoter of fair use of whom i'm aware of. but, yes, the position is of some uses, those uses that qualify as transformative uses should be available without fee which is the same proposition that's at operation in the hockey trust litigation. >> so i think we can agree some

uses are fair. >> let me just say a word, and then i'll defer to the former congressman. >> sure, go ahead. >> my father also told me never argue points of law with a lawyer, especially when it's on copyright on the other side of this case. [laughter] but let me say this in layman's terms and speaking as a layman. and as a professor and as a scholar, a writer who relies on fair use. i fundamentally believe in fair use. i could not do what i do without fair use. but within fair use there is a doctrine called transformative use which you just mentioned. and that is a camel that opens, that's once into the tent destroys, to my mind, what fair use is intended to mean. and i think judge baer had what i would call as a layman a radical notion of transformative use that you could just copy an entire book. you're not talking about little bits and pieces or what constituted in layman's terms

fair use, you're talking about the whole thing. and i think that higher courts will resolve that, the supreme court has a much more conservative and fair view of fair use that doesn't allow for the whole gutting of fair use through transformative use. >> well, i would, i have a fair bit to say here. [laughter] i would say, first of all, you know, when you look at went on with as the google and those university libraries, they simply took it upon themselves. i mean, this wasn't a congressional decision. this wasn't with -- this wasn't a public decision. they simply took it upon themselves to scan millions of books and then keep the digital copies with the risk that that entailed. but, peter, i thought one of your comments was when you said the paramount interests of end users, i thought that that phrase sort of revealed a view of this area which in my mind is not right. i think this is a creative

ecosystem where the interests of the creators and disseminators of knowledge is in balance with the end users. and i can tell you in the three and a half years i've been at this job, i've talked to a lot of librarians, and i've talked to a lot of university librarians. and they are under enormous pressure because of their budgets. their costs have been going up, and their resources have been going down. this is, has been going on for a couple decades. it's probably going to get worse with the decline of state contributions to public universities. it is about the money. a part of this is really about the money. they do not feel they can afford to keep up the collections they've had. and so they are looking for ways to get more for less. now, that's a great american tradition. so you can't say that it's all by itself. and then finally i would make a comment about the idea of transformative use.

there has been an established understanding, more or less established in copyright, as to what transformative use means. it's taking the work and changing it in some way that makes it, transforms it. so it become something different from the original, something at least marginally different from the original. but in the arl code of best practices, they suggest that transformative use applies to anything that they would determine was not intended for academic use, but is, in fact, used in a college or university course. that, that is a complete transformation of the idea of transformative use. first of all, because it requires an estimate of what the actual intention was, but secondly and more importantly, it's just using the same material for the purpose of being absorbed by the reader. it's not, in our view,

transformative. so we think that what's going on here -- and, remember, we're all part of the same ecosystem here. libraries are our friends, the friends of publishers and authors. but when these particular copyright doctrines get moved in ways that carry, i would say, a significant threat to the productivity of the ecosystem, then the creators have issues. >> thank you. let me just -- we're almost out of time, but let me say that in our office we're working on a number of provisions that relate to updating the copyright act. so we will work with congress, for example, to find solutions for orphan works, updating the library exceptions. we believe the chafee amendment, which is the exception for persons with print disabilities, requires updating. and i guess what i would ask you is since we have had a conversation largely about

professional authorship in copyright is should we be thinking about the legal treatment of authorship differently than we have for the past 200 years? should we be thinking about different kinds of authors in culture and possibly different kinds of legal treatment? is that a conversation worth having? >> well, i think it's an essential conversation because although professional authorship remains tremendously important and i sincerely hope that the horse survives -- [laughter] there is now also a new phenomenon of what might be termed voluntary authorship that has been enabled by new technology. so we're looking in the professional realm, in the academic realm where some of us live, the rise of open access models which, i think, need to be embraced rather than impeded.

especially since today offer a potential solution to some of the cost problems in the library sector that tom describes which would not necessarily hinge on the economic interests of anyone. so i think we need to think very seriously about how we treat nonprofessional or voluntary authorship. and by the same token, the question remains as to whether or not the account of the ecosystem -- and i love that terminology -- that we have heard today is, in fact, the historically and constitutionally-correct account. i think i must differ slightly from the account that says that the original intent of the framers of our constitution who

then turned around the year after and enacted our first copyright act was to give something in balance to all of the participants in the system. as far as i can tell, rightly or wrongly, those framers had an instrumental vision of copyright in which, in fact, the end user, the consumer and i'm happy to say it again today the reader was the ultimate beneficiary of the system. and we may, we may dislike that original framing, we may prefer european-style visions of copyright law. but in my view we're stuck with it. and i think more for good than for ill. >> i would only add to that i'll qualify by saying that the framers of the constitution didn't speak of consumers. today spoke of authors -- they spoke of authors.

and i would beg to disagree about their intent. intent is always very difficult to fathom. i can only deal with their language. and their language was about the exclusive right of authors to their respective writing. and right now within this system because authors, individual authors are the least powerful members of this ecosystem, they are the most endangered. >> tom? >> one final thing i would say is that for book publishers open educational resources which is where the movement is going can, you know, it's a free country. people want to get together and develop a course or write a book and give it away for free, that is the right of the author. that's the right of the copyright holder. finish and that is fine. our objection has come only when they, the governments here or abroad decide that they are going to fund those free materials and compete with a

robust private sector, you know, industry. then we get a backup a little bit. but i think one of the -- the final thing i would say is this: if you think about the educational market either the k-12 or through higher ed market, one of the hardest things for anyone to do is to evaluate the quality of the materials. and yet throughout this country in different ways sometimes with the texas tate board of education, you have people without experience in evaluating quality, the quality of materials trying to do it. and the open movement has a burden to carry which is can it establish high quality materials over a long enough period of time to compete with the curricula tar more than textbooks -- that are more than textbooks, the curricula in the

materials that are also available. because that matters enormously to the education of our children and the health of the democracy. >> well, if you have enjoyed this discussion about copyright, allow me to end by mentioning that in the copyright office we have a program entitled copy right matters. and we have had many speakers from many segments of the industry come in and speak here in the coolidge auditorium. we've had the aap. on tuesday, as i mentioned, at 3:00 here in the coolidge we have pens of the authors guild -- have members of the authors guild as well as john cole, our director of the center for the book speaking. that's at 3 p.m. and on february the 5th at 10:30 in the coolidge, we have peter speaking to us about best practices and fair use. and so with that, i'd like you to join me this thanking the panel. [applause]

>> tell us what you think about our programming this weekend. you can tweet us @booktv, comment on our facebook wall or send us an e-mail. booktv, nonfiction books every weekend on c-span2. >> 500 days: secrets and lies in the terror wars, is the name of the book. the author is kurt eichenwald. he joins us here at the national press club. mr. eichenwald, what are the 500 days you refer to? >> guest: well, this is a book about the period of time between 9/11 and the beginning of the iraq war. and the reason it's covering that is this is the period when all the major decisions were made in terms of policy, international policy around the world about how the west was going to respond the to al-qaeda and the 9/11 attacks. >> host: so when it comes to president bush, vice president cheney, how proactive were they?

what did you discover? >> guest: um, well, pre-9/11 there were some serious problems. those being the bush administration received -- the president received a lot of briefings about the coming attack, was told that there was going to be mass casualties, was told that there was a cell in the united states. but, unfortunately, there were members of the pentagon who said this was all a big deception being done by bin laden to take everyone's eyes off of saddam hussein. after that, after the attacks they got very aggressive in terms of the policies they decided or the policies they took on. and what you see in this book is what went into the decisions, how fast they were made, sometimes how badly they were made, but also some of them that came out, clearly, the right decision. >> host: now, kurt eichenwald,

you use the words secrets and lies. what's one of the lies that you found? >> guest: well, there are quite so many. some of them had to do, when you get down to it, some of them had to do with the simple things such as the knowledge they had within the government about the actual connections between al-qaeda and saddam hussein. one of the most surprising things to me was there was a defense intelligence agency report, a classified report that came out in 2002 that specifically said our intelligence on weapons of mass destruction is terrible. we can't establish any of the things that we're saying to the public. and i quote from that document pretty extensively. and so that, that was, um,ty tushing on the level -- disturbing on the level of it really did seem like b if something, the preconception, it was accepted. if something didn't, it was

tossed aside. and clearly the people who were doing the good work were the ones who were saying there was nothing there. >> host: how do you research a book like this? >> guest: um, you willingly subject yourself to a great amount of agony. the reporting on this started in 2006, and, you know, here we are 2012. when i started, i really thought i was doing a book about the eight years of the bush administration. and after many hundreds of hours of interviews, i realized that, um, i could write, you know, ten volumes on that and really the heart of the story was in this that 500-day period. and i collectedded as many documents -- collected as many documenting as i could. as anybody who sat down with me will say, i'm pretty much, you know, i'll say give me everything, and i want it now. i take documents even if i don't know what role they have. and in the end i put everything into a massive timeline.

this one was 3,000 pages. that is also a index to all the information i have. and from that able to reconstruct the history of what happened. >> host: did you have to make foia requests, and did the president or the former vice president speak with you about this book? >> guest: um, the only thing i'll never do is talk about who did or didn't speak with me. in fact, nowhere in the book do i disclose that. i disclose every document i used, but i don't talk about who speaks. i tend to find that foia requests aren't a lot of fun. um, they, you know, in one of my books i put in a foia request for certain documents, managed to obtain them another way, and about a year after the book came out got something saying those documents don't exist. so, you know, i tend to find that i do a much better job getting them on my own than hoping that the government will, you know, be nice to me and let

me have them. and, plus, i tend to find out that there are documents that i would never know to ask for. you know, things i don't know exist that i get by winning people's confidence and, you know, being able to persuade them of the reasons why i should get them. for instance, i have the presidential daily briefs from before the 9/11 attacks. only one of those has ever been publicly released, and none of them will be released under foia except for that first one at in the point. and -- at this point. and so i have more faith if my ability to get things than in the government's ability to give them to me. >> host: kurt eichenwald. his most recent book, "500 days: secrets and lies in the terror world." >> atkins could read the president's moods unlike anyone else. he came as close as anyone to gaining admittance into what

robert sherwood called roosevelt's heavily-forested interior. of -- he, unlike mrs. roosevelt, e knew when to be still in the presence of the president, when to press him, when to back off and tell a joke. after he won the election, wendell willkie, who he beat, was in his office, and they remained friends. and willkie said to the president why do you keep that man so close to you? that man being hopkins. um, willkie did not like hopkins. and roosevelt said, you know, you may be in this office someday, and you'll understand. but he asks for nothing except to serve me. >> trusted adviser, friend and confidant to fdr, harry hopkins lived in the roosevelt white house for thr a