Category: Lit/Pub

What Kind of Writer Indeed?

In a recent post entitled What Kind of Writer Accuses Libraries of Stealing?, Maria Bustillos stakes out a wide swath of moral high ground in defense of Controlled Digital Lending (CDL). CDL is a theory that libraries are allowed, within the boundaries of U.S. copyright law, to scan physical copies of legally obtained books and then loan the digital copies to one reader at a time, controlled by technical measures to prevent theft or unlicensed distribution.

Conceived by legal scholar and librarian Michelle Wu (and advocated by library associations and anti-copyright ideologues alike), CDL looks reasonable on the surface but is actually more complicated than Bustillos et al either recognize or are willing to admit. Nothing wrong with having an opinion, of course, but to pretend that the ebook market is not distinctive and then call anyone who points to the complexities “greedy and unethical” is just foot-stomping.[1]

In that spirit, Bustillos’s post is a response to a Twitter squabble that began with some pushback by Neil Turkewitz to her tweet praising the Internet Archive and defending CDL. Turkewitz tagged authors John Degen and T. J. Stiles along with the Authors Guild, which Bustillos refers to as summoning “a brigade,” and after describing her interactions with Stiles and the AG, she writes …

As a lifelong fan and beneficiary of libraries, as well as a working writer, I find the suggestion that libraries are trying to steal from writers very very offensive. I see no evidence for it. CDL doesn’t “devalue the labor of working authors” in the slightest. It protects and helps us, by codifying simple rules for preserving our work, and making it legally available to the public to try out through libraries.

Based on that paragraph, I would assume that Bustillos is unaware of, rather than intentionally obfuscating the much broader copyright narrative in which CDL is a small fragment. Certainly, she reveals more attitude than understanding when she writes that the Authors Guild litigation against Hathi Trust (2013) is “at heart” the same issue in the lawsuit filed by the publishers against Internet Archive (2020). Because the cases are not comparable.

Hathi Trust created a searchable database and made certain works accessible to persons with disabilities but did not make whole works under copyright available to the general public. By contrast, IA is being sued because it arbitrarily distributed over a million in-copyright books without license or even the controls called for in CDL. The irony here is that if Bustillos, or anyone else, wants to assert that CDL is narrow and reasonable, IA is the last organization to cite as an ally because it did not even respect the boundaries of CDL—and because IA founder Brewster Kahle’s anti-copyright vision is expansive. But Bustillos reveals that perhaps her sights look beyond CDL as well when she writes …

The trend started with software—you used to be able to own Photoshop and Office, but now you have to rent them—and has spread to movies, music and other media. The perpetual annuity model, needless to say, is very popular with Wall Street. Available evidence suggests that the endgame here, too, is eventually to go over entirely to a books-for-rent model.

Here again, Bustillos expresses more attitude than cogent argument that has much, if anything, do with CDL. It’s true that we now license, for instance, Microsoft Office month-to-month instead of purchasing the software, but price-wise, it’s about the same or less than it used to be, and overall convenience and security is generally better than the days when we had to buy upgrades delivered in boxes full of disks.

More to the point, ebooks are not comparable to software vis-a-vis upgrades, etc., but that’s why I highlighted the paragraph—because Bustillos is making a loose comparison for emotional impact rather than presenting a serious case for her position on CDL. Moreover, she endorses, perhaps inadvertently, an enthusiasm for CDL which is not limited to the mechanisms in that proposal but is intertwined with a broader criticism of licensing regimes throughout the digital market.

Speaking of apples and oranges, Bustillos inscrutably contrasts Neil Gaiman’s 2011 observations that piracy led to discovery and sales of his books against comments by Degen and Stiles about CDL in 2022. She cites Gaiman to make the point that lending books, especially by libraries, should not be seen as lost sales. This is generally true but is also a misdirection away from the crux of the debate over the mechanisms proposed by CDL—to say nothing of the broader anti-copyright strategy of which CDL is one prong. Further, it shows poor taste to cherrypick an unrelated comment made by a multimillionaire author (because he has greatly benefitted from the copyright system) in order to disparage authors of more modest income, who are intimately engaged with the copyright narrative nearly every day.

Perhaps Bustillos is unaware of the broader agenda being pushed by the scholars, ideologues, and lobbyists with whom she is breaking bread in her post. Even if CDL were a modest and simple proposal on its own, it almost doesn’t matter at this point because the library associations are engaged in a multi-level campaign against core principles of copyright law, and which would affect more than ebooks.

As discussed recently, the library associations have lobbied for legislation in six states proposing compulsory licenses for ebooks in a manner that is so clearly preempted by federal law that New York’s governor already vetoed its bill on that basis alone. So, why are these groups spending millions to pass legislation that is doomed to fail on constitutional grounds? Probably because failing in the states is a well-known path to lobby Congress to change the federal law.

So, as long as we’re fighting over the moral high ground, let’s consider the cost to state taxpayers to pass and defend ill-fated legislation and then compare that to the cost of ebook licensing from which the taxpayer is allegedly being rescued. Quick math:  400 titles x $32 per title/year x 25 library systems = $320,000/year per state. [2] What will Maryland spend to lose the lawsuit it now faces with the publishers over enforcement of its ebook bill?

I’m not saying I know exactly how the numbers shake out, but the library associations et al don’t present their economic complaint in economic terms in the first place. Like Bustillos, they generally vilify publishers, ignore the complexity of a system that includes many kinds of authors, and pretty much make a hash of copyright law in the process. The one thing Bustillos said with which I do agree is that Twitter fights are generally useless, but then I don’t know why she said that as a prelude to writing a long Twitter rant expressing more dudgeon than knowledge regarding these issues.

[1] Read Section 108 of the Copyright Act sometime, and if you don’t fall asleep, you will notice the strict and narrow conditions under which libraries are allowed to make or distribute copies of certain types of works.

[2] For reference, NYS has 23 library systems.

Amazon Fades from the ebook Legislation Narrative

Before I let the topic of these state ebook lending bills go for a bit, there is one aspect of this story that should not be overlooked. I was thinking about it when I saw a tweet criticizing Governor Hochul’s December 30th veto of the New York version of the bill. Media professional and professor Dan Gillmor, who has over 46,000 followers, summed up the sentiments of many when he wrote…

Mr. Gillmor’s hyperbole is an example of that blinkered view which finds it sensible to vilify publishers while ignoring authors, as if the interests of two were not intertwined. But the comment also reminded me that the force still driving this willful blindness is a belief that internet platforms can and should obviate the need for intermediaries like publishers. What’s especially funny about that idea in context to this story is that it was the monopolistic conduct of one internet platform—Amazon—which served as a major predicate for advocating the ebook bills in the first place. For instance, in Maryland, which passed its bill into law and now faces litigation by the publishers, all the supporting letters in the record contain the following:

For example, Amazon and Audible currently have between them over 20,000 “exclusive” titles. They will license these titles – which include high demand content by J.K. Rowling, Margaret Atwood, Alice Walker, Dean Kootz, Neil Gaiman, and others – to consumers, but not to libraries.

The headline of a Washington Post article from March 2021 (when the eBook bills were still percolating in state legislatures) identified Amazon as the publisher refusing to license titles to libraries. And as the AAP complaint against the State of Maryland notes, “The Maryland act’s legislative history and public statements by state legislators and public officials reveal some very specific concerns about this company.” The complaint adds that legislative sponsors specifically and repeatedly cited Amazon, but then avers, “… there is no contention that publishers more broadly are failing libraries. Nor is there any question that the marketplace for library ebooks and audiobooks is flourishing.”

After passage of the Maryland law, Amazon Publishing signed a deal with Digital Public Libraries of America (DPLA) to make their ebooks available to U.S. libraries, and it is reportedly negotiating terms to make its Audible audiobooks available as well. That’s a good thing, but we should not lose sight of the distinction between Amazon and the major publishers, who were not withholding their ebooks from libraries. Because whatever drove Amazon’s decision at the time (strategy for global domination?), it must be viewed as an outlier unique to that leviathan of a company and not aligned with the rest of the industry whose core business is still book publishing.

The library associations highlighted the conduct of one tech industry publisher as a reason to promote legislation that would divest individual authors of their copyright rights. Thus, despite the claims that these bills are not anti-author, a major prong of the argument for them boiled down to this:  Amazon behaved like a monopoly, so authors should pay the price. And this aspect of the story is transformed from the absurd to the grotesque when we remember that Amazon was among the platforms once touted by copyright critics as an antidote to the “gatekeeping” engaged in by publishers.

As the ebook bills gained momentum in four states—NY, MD, MA, RI—the Amazon predicate faded into the background to the extent that now, according to observers like Gillmour, the story is all about the publishing “cartel” quashing “reasonable” legislation solely directed at the price of ebook licenses for libraries. A couple of problems with this narrative, though.

The first is that, even if the libraries have a sound complaint about the cost of ebook licenses, that’s a subject for negotiation and not grounds for a futile attempt to legislate away the rights of authors. Second, if the libraries want to make a case for calling the current terms of ebook licensing unreasonable, they need to at least do some math. It is not enough to just compare the ebook purchase price to the library ebook license price and declare the difference extortionate on its face.

Because whatever the ideal cost of ebook licenses should be for libraries, the current rate of approximately three times the consumer price for ebook purchases is not as unreasonable as the library associations make it seem. The simple fact is that lending an ebook to multiple readers is a different market from selling an ebook to one reader. Let’s do a quick, back-of-the-envelope review for context.

A two-year license fee of $65 provides free access to an ebook to roughly 52 readers at a cost to the library system of $1.25 per reader. But based on the rhetoric employed by the library associations, they seem to want the same 52 readers to be provided access at a cost of about $ 0.29 per reader, but even then, not really. Because digital materials never wear out, what the libraries actually want (i.e. unlimited licenses at consumer purchase rates) is for the authors and publishers to make titles available until that per reader cost approaches zero. Clearly, there is a threshold when too low a fee would cannibalize the market for ebook sales, which would end the market for ebooks, period.

For further context, keep in mind that one reason the libraries claim a right to buy, rather than license, ebooks is that they are used to buying hardbound copies and loaning them to their communities. But here, the library associations are comparing apples and oranges and not taking an honest account of cost to the library system for providing its services. Because a physical book requires infrastructure and labor to maintain, a $30 clothbound copy, for instance, may cost the library around $1.44 per reader to serve the same 52 patrons.[1] The broader point is that the two-column argument the ALA et al presented to state legislators is not a full picture.

Finally, I would add that libraries will not stay relevant in a world where they put too many eggs in the digital lending basket. At the point at which one’s “library” experience is little more than tapping a button to access a book through an electron reader, the relationship with the individual library evaporates rather quickly. If the library associations were to take a serious read of the landscape, they might consider whether Amazon’s original refusal to license its titles has something to do with that company’s strategy to replace publishers, libraries, and any other distribution channel it doesn’t control. Because that’s the real battle of the digital age, and to that end, the libraries and publishers should be allies.

[1] Based on a staffer making $10/hr and spending three minutes managing a book for a single patron. The actual per read cost is likely higher.

Why is the press so bumfuzzled about copyright issues?

During a recent scan of the Authors Guild discussion boards, where I look for copyright related comments, I noticed a couple of authors mentioning how dismayed they were to hear the NPR show 1A host a one-sided conversation about the Internet Archive being sued by several major publishers. The program, which aired on December 7, hosted Internet Archive founder Brewster Kahle, along with Melanie Huggins of the American Library Association and John Bracken of the Digital Public Library of America.

The segments of the show extolling the virtues of libraries and discussing their digital futures were valid conversations worth having, but my friends at AG were right to take issue with the producers at 1A in regard to the conflict between Internet Archive and the publishers over copyright infringement. WAMU had provided a forum for advocates of policy positions directly opposed to authors’ interests and did so without inviting any authors to participate. Instead, as the press often does it seems, 1A amplified the too-simple narrative about King John publishers and Robin Hood librarians, as if the writers of the books necessary to both institutions do not have anything to say on the matter.

If 1A and others don’t want to host a serious conversation about the legal doctrines implied by the theory called “Controlled Digital Lending,” or they don’t want to discuss the library associations’ hopes to amend §109 of the Copyright Act, fine. If they don’t want to invite counsel for the Association of American Publishers to debate these nuanced legal matters, so be it. But before providing yet another platform for those who promote the “evil publisher” narrative, perhaps some consideration for the relationship between publishers and writers is warranted.

I don’t know. Maybe Macy’s will never talk to Gimbels. Because it seems to me that public radio shows feature in-depth interviews with authors all the time. Clearly, somebody in the ambit of NPR understands that before publishers or libraries can make books available, writers have to write them. And writing books is what we call work. And using anyone’s work without license is what we call exploitation, which is precisely what writers feel when Brewster Kahle (who is a multi-millionaire, by the way) and the executives at library associations presume to make books available in ways that contravene licensing regimes governed by copyright law.

It is very disappointing when journalists in a position to shape public perception on background issues like copyright law are apparently so star struck by Kahle’s utopian shtick that they ignore the individuals whose lives would be affected by the ideas he and his friends are promoting. I wonder if the producers were even aware that Kahle lied at the top of the program about the publishers’ lawsuit, when he flatly stated, “They’re accusing the Internet Archive of lending books,” and then further insinuated that the lawsuit came out of the blue at the start of the pandemic.

Commenting as a lifelong liberal, I can say that was Kahle throwing red meat to a presumably liberal audience, no less bloviating bullshit than anything that ever flowed from the maw of Jim Jordan. Because in this case, Kahle omitted the crucial detail that what triggered the lawsuit was his decision to release 1.4 million books without license or restriction, describe the move as a “National Emergency Library” (NEL), and claim that it was Internet Archive’s response to an urgent need during the early days of the COVID shutdown. (See post here for discussion.)

But Kahle is not so naïve and innocent as he presented himself on the broadcast. The NEL was a stunt—one worthy of Barnum—that seized upon the emergency atmosphere of the first wave in the pandemic to advance a broader anti-copyright agenda. And he had to know it would force the publishers to sue. Like any activist, Kahle wants to control the narrative, which is an understandable tactic but should be seen as a tactic, and one that had nothing to do with responding to a public need, let alone showing any respect for authors.

Unfortunately, the producers at 1A, like much of the press, seem to remain blissfully unaware that the copyright agenda promoted by Kahle and the library associations is not narrow but would, if achieved, affect professionals across most if not all areas of copyrighted works. So, in this regard, perhaps they might take a glance at their own web page, read ©WAMU at the bottom, and ask themselves what that means in the broader conversation they are not quite having.