I will be participating on a panel in the Writer’s Track called “Laws and the Writer.” It is at 7:00 PM. That should give you a couple of hours to get to Atlanta, grab a badge, and fight through hordes of women wearing TARDIS dresses.
Monthly Archives: August 2013
You can now follow me on Twitter for interesting links as well as updates on new blog posts. Just look for @writerinlaw. Maybe if I knew Twitter better (i.e. at all) I could provide you with some sort of quicker way to to follow my stream o’ tweets.
I wanted to give a brief policy overview, both for and against, the application of the first sale doctrine to eBooks. In other words, the arguments for and against allowing the sale of “used” eBooks.
I’ll go into the actual legal arguments (theory, doctrine, what have you) in a later post. I know you’re going to be waiting on that one with bated breath. If you want a preview, go and read the ReDigi district court opinion.
Most writers I’ve run across have VERY STRONG opinions on this subject, and all in one direction. (“I say we take off and nuke used eBooks from orbit. It’s the only way to be sure.”)
So naturally, keeping my audience ever in mind, I’ll start with the other side.
The policy arguments for permitting the resale of eBooks:
- Consumer protection thing 1. Some believe that converting sales of books from physical objects to technologically limited files negatively effects the consumer. It shifts power to the publisher and may ultimately reduce the value of what the consumer gets for the money. Some variation on same price/less value or lower price/much less value. The value in that formulation could relate to the monetary value in terms of resale possibilities or the longterm value of possessing something that will not disappear if you lose a password or device.
- Consumer protection thing 2. The lack of a secondary market (i.e. used market) will eventually lead to inflated prices. The availability of used books at a cheaper price than new books acts to decrease prices of new books. Eliminating the used market would therefore, it is argued, lead to increased prices.
- Copyright expansion. From a historical perspective, whether you consider the last two decades or the last two centuries, copyright has expanded GREATLY. This is true in terms of both the scope of rights given to the holders of copyrights and of the duration of the rights. The balance created by the first sale doctrine is seen as a small limitation on expansive copyright rights, whether you view that balance as stemming from personal property rights or from an exhaustion doctrine. (Okay, okay, I’ll save the theory for later. Hey, I’m a law professor – what do you expect?)
The policy arguments against permitting the resale of eBooks:
- Lack of degradation. Physical books break down. Their covers get bent, their spines are broken, . . . they get ratty or even fall apart. eBooks do not break down. A “used” eBook is identical in quality to a “new” eBook. With physical books, a purchaser of a new book would get something different than the purchaser of a used book, just as the purchaser of a new car gets something different than the purchaser of a used car. Mmmm, new book smell. Under this thinking, “used” eBooks would be much stronger competition for new sales. With physical books, there are reasons to buy new; not so, it is argued, with eBooks.
- Frictionless markets. Finding the used book you want can take more time than finding a new version. Maybe your local used bookstore doesn’t have the one you want. In other words, it may be easier to buy a new copy than to find a used version. (Amazon’s used book system for physical books may make this less true than it once was.) For eBooks however, because geography is taken out of the equation (the only “geography” remaining would be finding the correct website), it would be just as easy to find a “used” eBook as it would be to find a “new” eBook. Like the degradation problem, this would increase the competition new would face from used.
- Lack of resale being built into the price. I’ve heard many authors say that what they are giving the reader for the price paid is not something that can be resold. In other words, the lack of ability to recoup a portion of the original purchase price through the resale of the “used” eBook is already built into a lower original price.
- PIRACY. PIRACY. PIRACY. This is the dominant player for many in the ‘con’ camp. People just don’t believe users would not simply make a copy of an eBook and then sell the eBook in the used market. Most people arguing the “pro” side assume, for the sake of argument, that copy protection would be good enough to prevent this if we were to end up with a used market for eBooks. ReDigi claimed to monitor users’ computers to insure duplication did not result in their transfer of “used” mp3’s. As long as the belief that copying could happen on a rampant scale, this concern will dominate policy debates.
I’m not here today to declare a winner between these arguments, but I will offer two thoughts, that I will call “sideways.” That is, they come at the dispute not from a “pro” or “con” view, but from the “side.” Both of these stem from thinking about re-evaluating, in light of new technology, the incentive/public benefit calculus at the heart of copyright.
- We might consider a departure from monolithic copyright. Doesn’t that sound like an impressive term – “monolithic copyright”? (Professor, remember?) What I mean by that is that maybe what works for one type of art might not work for another type of art. So, we might do something different for music than we would do for books. Books are quite often read once and then not read again. (At least for most books with most readers – we don’t need to go into how many times I’ve read the Harry Potter series.) Music is different; most people don’t listen to a song and then never listen to it again. Music is experienced over and over again in typical usage. Because of this difference, a secondary (“used”) market for MP3’s may make more sense than a secondary market for eBooks.
- We could create a middle ground. We could permit the resale of eBooks, but legally mandate some sort of payment to the copyright holder. This would be a compulsory license akin to the mechanical license available for musical composition copyrights.
That’s a quick and (hopefully not too) dirty overview of the policy debates surrounding “used” eBooks. If you think I’ve left out any arguments for or against, I’d love to hear about them in the comments.
So what does Nathan Fillion have to do with hybrid publishing and conflicts between publishers and authors over unmet deadlines? Read on, browncoats.
I always find the portrayal of authors in popular media interesting, particularly the ways in which that portrayal is so far detached from reality. This departure usually takes the form of showing authors as either instantly successful or as so rich that money loses all meaning to them (or both). Bones is one example, although Dr. Brennan’s role as a rich author does not involve itself in the show that often. In one episode, her publisher buys her a new mercedes. You know – as a gift. Sure. Happens all the time.
Nathan Fillion’s character Richard Castle in the pseudoeponymous (epopseudonymous?) show Castle is another example. He throws money around without a thought, and he doesn’t seem to spend any time actually writing. I mean – supermodels, Italian sports cars, tons of free time – that’s been your experience with working as a writer too? Right?
But it’s not the money or lifestyle aspects of how Castle portrays authors that struck me while I was re-watching the pilot episode the other night (“Flowers for her Grave“). Instead, it was this dialogue exchange between Castle and his publisher/ex-wife:
Gina Griffin: What kind of idiot kills off his best-selling main character?
Richard Castle: Are you asking as my blood-sucking publisher, or as my blood-sucking ex-wife?
Gina Griffin: Oh, is that what you’re doing? Punishing me by killing the golden goose?
Richard Castle: Oh, come on. I may be petty and short-sighted, but I’m not *that* petty and short-sighted.
Gina Griffin: Really? Then why?
Richard Castle: Writing Derrick used to be fun. Now it’s like work.
Gina Griffin: Hmm. God forbid you should work. I mean, you could have retired him. You could have crippled him, you could have had him join the freaking circus. But no, you had to put a bullet through his head.
Richard Castle: Yeah. Real messy, too. Big exit wound. Don’t worry, Derrick Storm is not the golden goose here. I am. I wrote half a dozen best-sellers before him. What makes you think I’m going to stop now?
Gina Griffin: Oh, I don’t know. The fact the new book was due nine weeks ago.
Richard Castle: You can’t rush genius.
Gina Griffin: Genius, Richard? Try blockage. I heard you haven’t written in months.
Richard Castle: That’s ridiculous.
Gina Griffin: My sources are very reliable.
Richard Castle: Well, they’re wrong.
Gina Griffin: They’d better be. If I don’t have a new manuscript on my desk in the next three weeks, Black Pawn is prepared to demand the return of your advance.
Richard Castle: You wouldn’t dare.
Gina Griffin: Try me. Just try me.
Richard Castle: You know, I already returned that advance. I spent it divorcing you.
Stories of authors not meeting deadlines are legion. In fact, stories of authors missing deadlines by more years than you can count on one hand are not uncommon. Yet, what you don’t hear about is publishing companies suing authors for the return of their advances. That is what struck me as odd or out of place in the above-quoted scene.
(Yes, I realize she said “demand the return of” and not sue, but I’m trying to make a point here. And I’m perfectly willing to use Nathan Fillion to get your attention.)
Now, several possibilities might explain why you don’t hear about authors being sued for the return of their advances.
- Publishers don’t usually sue authors because it is bad for business. If the author still sells for you, then you don’t want to make them mad. If they aren’t selling for you, then they are likely what we in the law wrangling business call “judgment proof.” That is just a law wrangling way of saying you can’t get blood from a stone. So, if you aren’t going to get money back from the author, then any bad publicity you would get from the suit is more than enough to make you opt against suing.
- Publishers do sue, but no one talks about it because the publisher doesn’t want to turn off other authors or would-be authors and the author doesn’t want anyone to know they didn’t meet their deadline. In other words, both parties have strong incentives to keep it quiet.
- Publishers do sue, everyone knows about it, and Writer-in-Law is just clueless. Let me narrow that down: Writer-in-Law is clueless about publishers suing for the return of advances. I don’t want to leave that too open-ended, or we’d be here all night.
I’m pretty sure the answer is #1, with #2 perhaps playing a small role. But publishing and writing are such small worlds that you would think the stories would get out eventually even if both parties did not want it too.
So, how is it possible that this “reality” might change? What might cause publishers to start being more aggressive with authors who don’t meet deadlines? Well, that is what brings me to hybrid authors.
By “hybrid authors,” I mean authors who publish both through traditional publishers and through self-publishing channels. Being a hybrid author puts the author in a different relationship with a traditional publisher. An author who does not self-piublish, one who only publishes through traditional channels, is the “golden goose.” Publishing companies make money off the output produced by authors. However, a hybrid author is both a “golden goose” and a competitor; the hybrid author is a publisher as well as an author.
Now consider that fact in the context of the following hypothetical:
An author misses a deadline on a book for which a traditional publishing company has already paid the author an advance. So far, this is no different than any of the stories floating around about authors missing deadlines. But in addition to missing the deadline, this author also self-publishes a new book in a different series.
How is a publishing company supposed to feel about that? They’ve paid the author for a book. They haven’t gotten the book. Instead the author has self-published a book that will in their eyes compete with other books in the publisher’s line. So they’ve paid the author to compete with them.
Might that change their previously tolerant approach to deadlines?
At a recent writer’s conference, I heard one publishing attorney intimate that such a situation might change the attitude of publishers . . . to the point of pursuing legal action. He stopped himself as he started to say more about it. I suspect that he realized he was skirting the edge of client confidentiality requirements.
I’ve heard over and over again about how the hybrid approach is the new “diversification” for writing careers, and I can see how that makes sense in the quickly shifting publishing ecosystem. What I am suggesting is that we may also want to stop and think about how such an approach might alter the way publishers think and treat authors.
Happy Wayzgoose, everyone!
You do celebrate Wayzgoose, don’t you?
Wazgoose was a holiday originally celebrated by printers. Master printers would hold a celebration for their journeymen and apprentices as the season turned from summer to fall. At times, the day included pranks inflicted on members of the print shop who had breached some norm, often not replacing letter blocks in their proper places. Yeah, that guy had it coming on Wayzgoose.
Traditionally, printers celebrated Wayzgoose on August 24th though the reason for using that date is a source of some debate. Some say it was because August 24th is St. Bartholomew’s Day, and old St. Barty is the patron saint of printers and bookbinders. Others claim that August 24th was the date Gutenberg finished the first printing of the bible, but that August 24th was Gutenberg’s completion date lacks any historical evidence.
The word itself was most likely derived from an English phonetic spelling of a dutch term. Early English printers were heavily influenced by the Dutch; many of them would have learned their craft from Dutch printers.
Today, the term ‘wayzgoose’ typically denotes celebrations relating to or held by those involved with printing, books, or bookmaking – whether it be printing societies or bookstores or schools or museums or municipalities – and is not linked to any particular date.
So — Happy Wayzgoose!
The movable type printing press is oft cited as playing a role in the religious revolutions of the 16th and 17th centuries. The technology to print books and pamphlets created an ability to circulate ideas previously limited by word of mouth transmission and much less efficiently produced media (e.g. hand-transcribed manuscripts). This relationship is fairly well-known.
What many people do not know, however, is that this maelstrom of religious upheaval and new printing technologies also gave birth to copyright law.
One of the weapons in the religious struggles in England was the censorship of the religious views by whoever happened to be on the throne at any particular time. The problem that various monarchs ran into was that the same technology that had contributed to these religious struggles also made it very difficult to censor effectively. They simply could not keep pace with the number of books and pamphlets that could be produced with the new printing technology.
So, they enlisted the aid of the Stationer’s Company, the members of the book trade who had received a royal charter to organize into a Company in 1557. English Companies were similar to and had evolved from medieval guilds. The Stationer’s Company was comprised of bookbinders, booksellers, and printers.
During almost the whole period from 1557 to 1709, a time of continuous religious struggle, censorship was a major policy of the English government. This policy made it convenient for the government to give the stationers large powers, which it did in increasing measure, in order to have them serve as policemen of the press.
L. Ray Patterson, Copyright in Historical Perspective
This system of censorship was enabled first by the Star Chamber Decrees of 1566, 1586, and 1637 and then later by the Licensing Act of 1662. The government did not intend to create copyright law with these statutes. Rather, their concern was merely with censoring opposing religious views.
Instead, the Stationer’s Company copyright arose as an offshoot of the powers granted by the government for censorship. In other words, the powers granted to the Stationer’s Company allowed them to create a form of copyright.
They did so as a way of increasing the profitability of their business endeavors by ordering their own internal affairs. Essentially, the members claimed their “copies” – what we call works of authorship. Whichever member registered a particular “copy” would have the exclusive right to print, bind and sell books from that copy. This act was referred to as “entrance” in the register. An entrance in the register* might take the form of:
Owyn Rogers ys lycensed to prynte a ballette Called have pytie on the poore.
(Apparently, it wasn’t “and sometimes Y.” It was “Y all the tyme.”)
These rights were initially enforceable privately within the company, but later grew to be enforceable in courts of law. It is quite likely that some form of copyright existed prior to these censorship efforts and even prior to the royal charter of the Stationer’s Company, but whatever form it took it did not have the full legal standing and scope of what we would view as copyright.
Note that the author was not a part of this picture. Authors were not members of the Stationer’s Company. They were considered “above” commerce. Selling copies of their work was considered improper. They did in fact sell manuscripts to members of the Stationer’s Company, but this relationship maintained the air, if not the reality, of the earlier system of patronage.
So how did the we end up with a governmental copyright that was focused on authors?
For that we have to fast forward to the late 17th and early 18th century. Two changes in what the government was able and willing to do led the members of the Stationer’s Company to seek what became the first copyright statute.
First, the government moved away from a policy of censorship. This threatened to pull the teeth out of the powers that had permitted the Stationer’s Company to create their internal system of copyright. Second, the government became very sensitive to public disapproval of government granted monopolies.
So as the censorship laws expired, the members of the Stationer’s Company had to seek out some way to maintain their economic advantage – and their effective monopoly had given them quite an advantage. In a relatively short period of time, they had moved from an unimportant guild** to one of the wealthiest and most influential.
What they sought from the government was legislation that would enshrine their previously private system into public law. Importantly, those rights were perpetual. Once a member had rights to a particular copy, they had it forever.
So, how did we get limited-in-time copyrights focused on authors?
That is where the second change comes into play – public animosity toward monopolies. In that anti-monopoly environment, a fight arose between two groups within the Stationer’s Company – the printers and the booksellers. (The oldest group, the bookbinders, were largely irrelevant at this point.)
One group wanted no copyright while the other wanted a perpetual copyright – one that never expired. The twist is that both groups argued not for their own good, but instead argued on behalf of the “author.” After all, those advocating for a perpetual copyright had a difficult time persuading anyone that a new monopoly should be granted. So instead they appealed to what was in the author’s interest, and once one side made this rhetorical move, the other side followed suit. It was the use of the “good of the author” by both sides to the argument that produced the concept of copyright as an author’s right.
In fact, public sentiment against monopolies was so strong that it took many years for the stationers to get anything enacted. In 1709, the decades-long fight produced the first copyright statute – commonly referred to as the Statute of Anne, a much snappier name that the actual full title: “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned.”
*Some of the earliest known uses of the actual term “copyright” occurred in the company register. However, such uses were quite rare.
**The Hatter’s Guild was one of the six most powerful guilds. In comparison, the Stationer’s Company would initially have been somewhere down in the forties in terms of ranked importance. Hats were apparently a big deal.
One of my goals for this blog is to expose writers to other views of copyright law and policy. Writers, in my experience, tend to view copyright as akin property and as having a moral justification – “I created it, therefore I should own it.” I know that is an oversimplification; most writers’ views contain more nuance than that. But it is, I think, an accurate representation of the core of those views.
While one can find a thread of that view, the natural rights view, in copyright law and cases throughout the history of US copyright law, it is not the dominant or explicit justification for copyright in US law. It is a view more commonly associated with the continental European approach to copyright.
The Anglo-American approach to copyright has expressed a different narrative. In most explicit discussion of the theory underlying copyright law, copyright is about incentives. On the surface, this fits with the writer’s view. A creator would not invest the time and effort into writing a book unless the law provided a means to capitalize on that work. And if that were the extent of it, then we wouldn’t see many if any divergences between the natural rights view and the incentive view. However, the incentive view goes deeper when we examine the goals toward which those incentives are pointed.
The enumerated powers in the US Constitution includes the following in Article I, Section 8, Clause 8:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
This is commonly referred to as the IP clause and it serves as the basis for federal legislative power covering patent and copyright laws.* Note that it sets forth as the goal “to promote the progress of science and useful arts” and not to promote the creation of works. The Constitution was drafted at the end of the 18th Century, a century featured a long debate in England about copyright and patent law. The Founders would have been quite familiar with the policy arguments.
The goal of the incentive structure set up by copyright law, so it is argued, is to promote benefits to society. That is done primarily by providing creators with economic incentives, but those economic incentives are not the ultimate goal. They are merely a means to an end.
This is where balancing comes in. In pursuit of that end, the economic incentives might be limited and balanced against the good of society. More specifically, copyright is seen as limiting the benefit to society by increasing costs of access to the works and at times reducing access to the works.
A theorist looking at the incentive theory would say that we want to maximize societal benefit. That means a couple of things. First, we should only give the bare minimum of copyright protection necessary to guarantee production, and not one bit more. Of course, there is no single line in the sand so to speak. It is a continuum in which more protection theoretically leads to more works, and less to less. Finding that optimum point for societal benefit is the incentive theorist’s goal. An incentive theorist only gives the bare minimum necessary to insure production because every increase in protection theoretically comes at a cost to society – some times literally, as in the works cost more. Second, most theorists would include not only production of a work but also access to the work as a necessary component of societal benefit. Greater and longer protection can in certain circumstances decrease the availability of a work.
It is this second point – the relationship between copyright law and access to works – that is the subject of a recent study that generated quite a bit of interest in academic copyright circles (and beyond – does The Atlantic qualify as beyond?):
How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)
Heald’s study is nicely summarized by Rebecca Rosen in The Atlantic. Her summary features the tagline: “A book published during the presidency of Chester A. Arthur has a greater chance of being in print today than one published during the time of Reagan.” Some high points from the article:
There were as many books available [on Amazon] from the 1910s as there were from the 2000s. The number of books from the 1850s was double the number available from the 1950s. Why? Copyright protections (which cover titles published in 1923 and after) had squashed the market for books from the middle of the 20th century, keeping those titles off shelves and out of the hands of the reading public.
. . .
“Copyright correlates significantly with the disappearance of works rather than with their availability,” Heald writes. “Shortly after works are created and proprietized, they tend to disappear from public view only to reappear in significantly increased numbers when they fall into the public domain and lose their owners.”
. . .
Heald says that the WorldCat research showed, for example, that there were eight times as many books published in the 1980s as in the 1880s, but there are roughly as many titles available on Amazon for the two decades.
With beginning of the semester fully upon me, I haven’t had the time to go through the full study and likely won’t anytime soon. However allow me to play the TL;DNR devil’s advocate.
First, I wonder if the game has changed. Has the recently emerged ability to keep any book in stock without warehousing costs (eBooks, POD) changed what will happen to books in the future? Perhaps this dip is a thing of the past. In pre-Internet days, shelf space was at a premium and the costs of physical books over their lifespans perhaps contributed to the effect seen in the study. In that world, it made sense for publishers to maintain supplies of the most recent books if those were going to produce the most sales in the short-term. And keep in mind, that the lack of these books availability in eBook or POD formats may in large part be due to the inability of publishers to undertake the digitization process for massive backlists and due to a simple loss of information on who owns the copyrights for the lost books (orphan works).** In a world where maintaining the availability of books is virtually costless, we may not see such a decrease in availability moving forward.
Second, I wonder how much influence school reading lists have on the availability of some of these older works. Is that list of canonical works skewing the data?
Third, even taking this effect into account, it may not indicate that current copyright law’s incentive calculus is off. Even if lengthy copyright duration is reducing the relative availability of works, the net creation and value produced by copyright incentives could still be ideal or at least positive. The number of available works is just one small part of the measurement of copyright’s results.
* Though perhaps counterintuitive to our modern word usage, “science” refers to copyright and “useful arts” refers to patents.
**The orphan works problem and proposed “solutions” could fill several more blog posts.