Don’t play with that, or you’ll go blind

James Cameron’s 3-D movie Avatar gave me a four-hour headache. Probably the headache was caused by a combination of the 3-D effect, a seat near the front and at the far edge of the theater, the way the 3-D glasses skewed my plain old glasses beneath, and the dark in which I biked home afterward, my bike light having been stolen while I was in the theater. But I can’t help but also attribute the headache to the movie’s moral corruptness.

It’s a finished corruptness. The easiest way I can think of to describe it is by comparison with The Matrix, a movie which is merely disingenuous, and to some extent struggling with its disingenuousness. The moral lesson that The Matrix purports to offer is that the glossy magic of life inside a simulation distracts from painful truth. But the moral problem faced by the Matrix is that this lesson is betrayed by the fun that the movie has in playing inside the simulation. A viewer enjoys the scenes of jumping over buildings, and of freezing explosions and fistfights in midair and then rotoscoping through them. In fact, the viewer enjoys them much more than the scenes of what, within the conceit of the movie, is considered reality. There may be a brief yucky thrill to learning that in reality people are grown in pods so their energy can be harvested by robots, but as a matter of aesthetics, reality in The Matrix turns out to be drab and constricted by gravity and other laws of physics. The closing sequence, where Neo (Keanu Reeves) plugs back in to the matrix and runs a sort of special-effects victory lap, makes no sense, in terms of the moral victory he is supposed to have won. If he has really joined the blue-pill team, he ought to be sitting down to another bowl of bacterial gruel with his ragged, unshowered friends, and recommitting himself to the struggle. Instead he’s leaping around in a Prada suit. So the viewer departs from the movie with a slightly queasy feeling, a suspicion that visual pleasures aren’t to be trusted. That queasiness is the trace of the movie’s attenuated honesty.

And such queasiness and honesty are completely absent from Avatar. Some might protest: But what about Avatar’s anti-imperialism and anti-corporate attitudinizing? They’re red herrings, in my opinion, planted by Cameron with the cynical intention of distracting the viewer from the movie’s more serious ideological work: convincing you to love your simulation—convincing you to surrender your queasiness. The audacity of Cameron’s movie is to make believe that the artificial world of computer-generated graphics offers a truer realm of nature than our own. The compromised, damaged world we live in—the one with wars, wounds, and price-benefit calculations—can and should be abandoned. All you need is a big heart, like Jake Sully (Sam Worthington), the movie’s war-veteran hero, and the luck of being given a chance to fall in love.

In Cameron’s movie, Sully joins a corporate mission to extract a valuable mineral from a distant planet, Pandora, whose ten-foot-tall blue-skinned aborigines, who call themselves the Na’vi, are uninterested in cooperating with their planet’s exploitation. In order to talk to the Na’vi, and win their hearts and minds, corporation-funded scientists have grown adult-size hybrid human-Na’vi bodies, which humans can remotely operate by lying down inside a pod—a coffin-shaped pod, not unlike the pod where Neo wakes up to discover he’s been soaking his whole life in soup. But whereas Neo jacks into a simulation, Sully jacks into to a new, improved nature, and Cameron musters the mythologies of Henry D. Thoreau, James Fenimore Cooper, and James Lovelace in order to convince. Or anyway the mythologies of The Lorax and The Lion King. The Na’vi respect the balance of nature. They commune with a deist-ecological world-spirit.

Or so the movie would have you believe. Of course you don’t really believe it. You know objectively that you’re watching a series of highly skilled, highly labor-intensive computer simulations. But if you agree to suspend disbelief, then you agree to try to feel that Pandora is a second, improved nature, and that the Na’vi are “digital natives,” to repurpose in a literal way a phrase that depends on the same piece of ideological deception. For on Pandora, all the creatures have been equipped by a benevolent nature with USB ports in their ponytails. When Sully, inhabiting his Na’vi body, first discovers his, the curmudgeonly lead scientist played by Sigourney Weaver snaps at him, “Don’t play with that, you’ll go blind.” This is a little startling. The organ in question looks sort of like flower pistils wriggling out of the hairy end of a tail. But we gradually learn that it isn’t his reproductive organ, which for better or worse we never see. It’s for making “the bond” with various other species on Pandora. In order to ride a horse-like creature, for instance, Sully is instructed to first connect his ponytail-USB port to the horse’s. Same with various species of flying dragon. And if you want to connect to the Na’vi ancestors, you plug your ponytail into the willow-tree-esque tendrils of the Tree of Life. In other words, on Cameron’s Pandora, the animals cavort with one another much like the peripherals on his desk, plugging and playing at will, and the afterlife is more or less equivalent to cloud computing. Once you upload yourself, you don’t really have to worry about crashing your hard drive. Your soul is safe in Google Docs. In a climactic scene, rings of natives chant and sway, ecstatically connected, while the protagonists in the center plug into the glowing tree, and I muttered silently to myself, The church of Facebook. You too can be reborn there.

Why does the digital nativity bother me so much? I think the answer has something to do with the smug anti-corporate plot. In reality—in the reality outside the movie—the Na’vi, too, are a product of corporate America and are creatures of technology, not nature. Now there’s nothing wrong with technology per se, and there’s nothing wrong with fantasy, either. But Avatar claims that there is something wrong with technology, and that the Na’vi of Pandora somehow represent opposition to it. That’s rank mystification, and one has to wonder about motive. I think there are aspects of being human that a movie like Avatar wants to collude with its viewers in denying—aspects of need and of unfixable brokenness. There are traces of this denial in the movie. We never see the Na’vi eating, for instance, except when the transcarnated Sully briefly samples a significantly pomegranate-like fruit. Yet they have high, sharp canines. Vampire-like canines. Indeed, Sully turns into a Na’vi after he lies down in his coffin-pod. Once he takes to his avatar, even his human body has to be coaxed to eat. Like a vampire’s, Sully’s cycles of waking and sleeping become deeply confused. In the unconscious of the movie, I would submit, all the Na’vi are avatars. That is, they are all digital representations of humans, lying elsewhere in coffin pods. And they are all vampires. They have preternatural force and speed, wake when others sleep, and feed on the life-force of mere humans—the humans lying in the pods, as a matter of fact. This, I think, is the strange lure of the movie: Wouldn’t you like to be the vampire of yourself? Wouldn’t you like to live in an alternate reality, at the cost of consuming yourself? Vampires have a culture, a community, feelings. They don’t have bodies, but they have superbodies. The only glitch is this residue offstage, rotting and half-buried, that you won’t ever be able separate from altogether—until, at last, you can.

Objection, your honor

Because the community of authors seem to be greeting the advent of the Google Books Settlement with uncharacteristic silence, here's the letter of objection I recently sent to the clerk of the court settling the case. You can only object if you opt in to the settlement, so this means I'm in. (The deadline for opting out or for objecting to the settlement is May 5.) The letter incorporates ideas that I laid out in earlier posts; apologies for the repetition. I'm sure I've mangled a few legal details along the way; the only thing I'm confident of is that the settlement will have important effects that have not been foreseen by anyone, let alone me.

Brooklyn, NY 11215

28 March 2009

Office of the Clerk, J. Michael McMahon
U.S. District Court for the Southern District of New York
500 Pearl Street
New York, New York 10007

Dear Mr. McMahon:

As an author whose works appear in the Google Book Search database, I am writing to object to some of the provisions in the proposed Google Books Settlement. The concerns that motivate my objections came to me as I was navigating the settlement website, and broadly speaking, my objections fall into two categories. The first consists of defects in the settlement that seem to be caused by a mismatch between legal thinking, which is abstract and precise, and the diffuse and sometimes sloppy way that information is actually managed online. I've grouped these objections below under the heading "Practical objections." The second category is caused by the disparity between author's rights as legally defined and the influence and persuasive power practically available to authors heretofore. I’ve grouped these under the heading "Moral rights." There's some overlap between the two categories.

A. Practical objections.

1. I object to the restriction of the settlement to books registered with the U.S. Copyright Office.

According to the Google Books Settlement list of Frequently Asked Questions, “The requirement that United States works must be registered with the U.S. Copyright Office in order to be covered by the Settlement was included in the Settlement in order to comply with a decision of a U.S. court.” Perhaps, then, it’s a provision that the two parties felt they needed to comply with, but that your court will be able to set aside. I hope so. Until this settlement was proposed, it was unnecessary to register one's work with the U.S. Copyright Office in order to own copyright in it. If a copyright was infringed, an author could sue provided he was able to prove that the work in question was his and that he had not sold the rights to it. As a preliminary to a suit, an author did have to file a copyright claim with the Copyright Office, but it was not necessary to file this claim upon publication or for unpublished works in order to deter infringement. If approved, therefore, this settlement would have the practical effect of retroactively adding a bureaucratic requirement in order to secure ownership of copyright.

A personal example might explain the dilemma. Searching the Google Books database, I found a citation of a thesis I wrote as an undergraduate and deposited, as a requirement for my degree, in my college library. I never registered my thesis with the U.S. Copyright Office, because I never expected it to be published. Nonetheless I believed I had copyright in it and would have the power to decide whether it was to be published. As far as I can tell, Google has not yet digitized it, but by the terms of this settlement, the company is only restrained from digitizing it by its wish to maintain good will in the marketplace. By a common-sense definition, my undergraduate thesis is a "book"—it is bound, there are multiple copies (though only two, I’m pretty sure, in all the world), and it is publicly available (to anyone willing to trek to my college library).

Legal precedent would require me to register my undergraduate thesis with the Copyright Office in order to protect it. But I would argue that the sheer volume of Google's proposed encroachments ought to shift such a bureaucratic burden away from authors and onto Google. In other words, I believe that as a practical matter the courts should waive the formal requirement of copyright registration and offer the protections in the settlement to any book that Google finds on a library shelf.

2. I object to the lack of guidance in the instructions on the settlement website as to how authors should claim a book or an insert that appears several times in Google’s database.

By digitizing the holdings of many libraries, Google has inadvertently scanned a number of works several times. Sometimes the Google database treats the multiple digitizations as belonging to the same underlying work; sometimes it doesn’t. (It almost never knows when an insert has been reprinted.) Should an author claim every version of his work, so as to be sure that he protects his rights in every instance? Or should he only claim one version of each work, so as to avoid seeming to ask for settlement payments he doesn't deserve? As it stands, there is no way for an author to inform Google that it has digitized multiple copies of one work and that the author wants to make a single claim covering all such copies.

This is not merely a bureaucratic flaw. Under some of the ways that Google proposes to make money off of digitized books, different digital versions of a work would correspond to different revenue streams. If I were to get a share of the revenue only from one of several digitized versions of my work, I would be short-changed. I think this is a problem that could be easily remedied if Google were to modify its online claim form.

3. I object to the failure to share future revenue streams with the authors of inserts.

Google has offered to make one-time cash payments to authors of books and inserts for the infringements of copyright it has made by digitizing works and for the right to sell digitizations of their works to institutional subscribers. However, it also proposes to make money off of these digitizations in other ways—perhaps by placing advertisements next to search results or by selling downloads of digitized books. Google proposes to share these alternative revenues with the authors of whole books, but according to schedule C of the settlement agreement, it is not planning to share these profits with the authors of inserts. I object to this as grossly unfair. Why should the author of a novel be entitled to a class of compensation that an author of short stories is denied? In the case of an anthology, a book consists entirely of inserts, and Google would apparently be entitled to keep for itself all such revenues.

Though this seems to me a matter of simple fairness, I have classed it as a practical matter because I think it's the sort of problem whose resolution looks cumbersome to a legal mind but that would in practice be quite easy to remedy with a modification of the database procedures.

4. I object to the failure of the agreement to cover periodicals.

Again this seems to me a matter of simple fairness, but I'm classing it as a practical objection because it seems to me that the distinction between a book and a magazine is much more perspicuous to a lawyer than it is to the scanners in operation at Google. As a practical matter, the Google Books Database does not often distinguish between periodicals and books, especially with older periodicals that are no longer publishing. As researchers who use the Google Books database know to their dismay, periodicals are the database’s Achilles heel; in many cases, older volumes of a bound periodical are treated as if they were a series of books with the same title, and volume numbers and year of publication are rarely included in the metadata.

But my concern here is not as a researcher but as an author to maintain his rights. I have written much more for magazines than for books, and over a much longer period of time, and Google seems to have digitized a number of these works, sometimes for magazines that are defunct and no longer around for Google to negotiate with. I feel that I ought to be able to assert control over and be compensated for Google’s use of all these writings, and if they are excluded from the settlement, it will be an opportunity missed.

B. Moral rights

The idea of moral rights is an attempt to address the fact that works of art are not like, say, eggs or lumps of coal. The creator of a work of art cares about what happens to it, even after he's sold the right to publish it or display it or even own it, in a way that a keeper of chickens does not care about the fate of eggs, or a miner about the fate of coal. Unlike monetary rights, the moral rights in a work of art cannot be transferred. I understand that American law does not protect authors' moral rights. However, in the community of American publishing, these rights have nonetheless been to some extent respected, because a publisher who fails to respect them is considered scurrilous and loses the good will of the community of authors.

Google has introduced itself into the publishing world in a new way. Unlike other publishers, it is not in the business of signing up new authors but is exclusively in the business of repackaging works that have been published by others. It is therefore less subject to direct moral suasion by authors, and this settlement may be one of the few occasions when authors have the power to exercise their moral force with Google. I believe it would be appropriate for authors to insist that Google recognize explicitly some of authors’ moral rights.

1. I object to the failure of the settlement to allow an author to restrict display and redistribution of creative work even if he signed a "work-for-hire" contract with his original publisher.

In the case of a poem, a work of fiction, or a memoir, I believe that an author retains effective control over republication of a work, even if he originally signed a work-for-hire contract.

Again, a personal example may clarify the issues. A decade ago, a short story of mine was published in an anthology now out of print. I'm happy it's out of print, and I'd like to keep it that way, but when I searched for my name in the Google Books database, a "snippet view" of the story popped up and panicked me. I could not remember whether I had signed a work-for-hire contract for it. After subsequent research, I discovered that I had not signed a work-for-hire contract and that I do retain all legal control over the copyright. But what if I had signed one? Would I really have no control over my short story? Before the advent of Google Books, a traditional publisher might have been able to buy the legal right to reprint my story but I doubt that very many publishers would dare republish it over my objections. If any tried to, I would call foul, alerting my friends in the community of authors and asking my agent to apply pressure. Please note that I'm not claiming that I could win money for a reprinting even if I'd signed a work-for-hire contract. I'm claiming that over creative work, I retain an effective veto over republication, especially if the work has subsequently fallen out of print, no matter what kind of contract I originally signed. I believe the settlement should make some kind of provision for a veto based on moral rights, to respect an author's wish to decide which of his works he would like to be judged by in the future.

A side matter: On the settlement website as it is operational today, 28 March 2009, when an author views the details of an insert that he has claimed, the "Display Uses Authorized" button stays clicked when he saves his changes, but the "Display Uses Not Authorized" button does not. The anomaly needs to be fixed.

2. I object to the failure of the settlement to treat the creator of a "work-for-hire" as the copyright holder when the purchaser of the work-for-hire is defunct and no subsequent owner of the rights comes forward.

Publishers go out of business, and sometimes they take their rights with them. The Google Books Settlement exists to remedy exactly this problem. I believe that if a publisher doesn't sell his copyrights before expiring, the rights effectively revert to the creator, even if that creator signed a work-for-hire contract. This may be more a matter of jeopardy than of strict accounting. In other words, if a traditional publisher were to try to republish such a work without compensating the original creator, he'd be risking a lawsuit. The Google Books Settlement, however, excludes books written as works-for-hire and therefore does not make Google accountable to such creators. As a practical matter, such books will probably be treated by Google as if they were non-work-for-hire books whose rights holders had not come forward.

My personal concern here is with translation. Most of my translation work was done as work-for-hire, and in at least one case, the publisher is now extinct. Who now owns the rights to those translations? I’d argue that I have a stronger claim on them than Google does. (Of course, if it transpires that the publisher before closing shop donated the rights elsewhere, then the donee has a stronger claim than either of us.) I suggest that Google modify its claim form to allow translators and other work-for-hire creators to state the nature of their contribution in a work and that Google compensate them (though perhaps not at the same rate as full-on authors) if no other claimants come forward.

I hope these objections are useful to you in deciding a final settlement, and I appreciate your attention to them.

Respectfully submitted,

Caleb Crain

Rameau’s nephew on the ethics of snark

In his dialogue Rameau's Nephew, first published in 1798, Diderot can't quite believe that the younger Rameau is willing to badmouth the people he sponges on. Explaining himself, Rameau anticipates the modern apologists of snark.

HIM: . . . Mademoiselle is starting to become tiresome; the stories they're telling about her are not to be missed.

ME: You're not one of those people?

HIM: Why not?

ME: Because to put it mildly it's indecent to make fun of one's patrons.

HIM: But isn't it even worse to make patronage a justification for degrading one's protégé?

ME: But if the protégé wasn't in himself degraded, nothing would give the patron that power.

HIM: But if the patrons were not in themselves ridiculous, one wouldn't be able to tell such good stories about them. And is it my fault if they socialize with trash? Is it my fault if, having socialized with trash, they are betrayed and mocked? When one chooses to live with people like us, and one has a little common sense, there are I don't know how many blacknesses one ought to expect. When one takes us up, doesn't one know us for what we are, for venal, degraded, and treacherous souls? If one knows us, it's all right. There is a tacit pact that one will do us good, and that sooner or later, we will return evil for the good that has been done us. Doesn't the same pact link a man and his monkey, or his parrot? . . . If one brings a young provincial to the zoo at Versailles, and he takes it into his stupid head to put a hand through the bars of the tiger's or the panther's cage; if the young man leaves his arm in the maw of the wild animal; who's in the wrong? It's all written in the tacit pact. Too bad for anyone who doesn't know about it or has forgotten it.