Category: Art

Books are Not Floor Wax and Road Salt

One would think this is obvious, particularly to a librarian, but perhaps not to Douglas Lord, President of the Connecticut Library Association (CLA). In a letter addressed to the state assembly advocating passage of H.B. 6829, Connecticut’s version of similar bills proposed (and shot down) in other states to address alleged unfairness in eBook licensing to libraries, Lord writes:

It is very important to note that this legislation has nothing to do with copyright, it is a matter of contract law. In the same way that taxpayer funds are treated preferentially with all other state contracts – from floor wax to vehicles to road salt – the same should be true for electronic content. [Emphasis included]

Although the Connecticut bill does not require publishers to license to libraries in the state, it contains several provisions defining various publishers’ licensing models as “unfair trade practice,” which is tantamount to a state compulsory license, which means H.B. 6829 is preempted by the Copyright Act. So, it has something to do with copyright law. In fact, although I am sure Lord does not sincerely equate books to floor wax and road salt, his disregard for the unique cultural value of the former may explain his absurd allegation that copyright law is not implicated in a state bill about contracts. Every contract negotiated for the use of copyrightable works rests upon the author’s exclusive rights enumerated in Section 106 of Title 17. So, Lord’s declaration is either intentionally misleading or naively misguided.

Notably, Lord’s letter reiterates the ambiguous rationale that has been proffered by every advocate of these bills in every state so far—i.e., the difference between the retail price of an eBook purchase compared to the licensing models that publishers offer to libraries. He states, “Consumers pay, on average, $12.77 for eBooks from retailers like Amazon. The average cost for a public library for the exact same product is $45.75.” Indeed, if one does not look beyond those two numbers or gather any relevant community information, the price comparison looks outrageous, even extortionate.

But to address this issue, I did my best to examine the market in my own region served by the Mid-Hudson Library System and found that a) less than one-third of the MHLS community accesses the library system for books of any kind; and b) that the average eBook cost per read is ~$1.06. And apropos the big picture for the taxpayer, it is notable that maintaining a library’s collection—both physical and electronic—is usually a fraction of its operating costs. To quote my post looking at MHLS:

The data collected in the Institute of Museum and Public Services (IMLS) Public Library Survey reveals that libraries’ costs are increasing for personnel and general operating expenses while costs are trending downward for collection materials—especially the cost of ebooks and audiobooks. Noting that most libraries spend an average 10% of their annual budgets on their collections overall, an article in Wordsrated summarizing the IMLS Survey states, “The drop in price per item is due to library collections becoming increasingly digital. This is because the price per digital item has declined significantly. All while the average cost per book increased 10% since 2003.”

While $1.06 per read does not seem extortionate, I do not claim to know whether that price is “fair to the taxpayer” in New York or Connecticut or anywhere else. But that’s my point. No advocate of these eBook bills, to my knowledge, has attempted to demonstrate a critical need for this legislation based on cost/benefit numbers, which is odd when one is alleging unfair use of public funds. And I suspect that’s because these bills are not directed at solving a real problem but are instead the hobbyhorse of anti-copyright activists like Jonathan Band and Kyle Courtney. Consequently, it is no surprise that advocacy of these bills, including this letter from CLA, repeats the vague tautology that publishers are extortionate and usually ignores the interests of authors.

Here, Lord goes a step further and claims that “Authors get no added royalties or income from these sales.” Not true. Authors’ contracts include revenue from eBook licensing to libraries, and the author’s percentage of eBook revenue is usually higher than her cut from physical book sales. Plus, those percentages typically increase as sales go up, advances are covered, etc. So, I am not sure whence Lord’s assertion comes, but it is consistent with the logic behind this bill—that books are like other commodities, and the author’s pecuniary interests are not directly associated with her copyright rights.

As I’ve repeated in nearly every post on this topic, the libraries should be careful what they wish for when it comes to eBook licensing and, if they hope to remain relevant, should avoid putting too many eggs in the digital basket. The logic is not hard to follow. If 90% of the cost of keeping libraries open is not about the collection, and the digital collection grows too large, how long before taxpayers figure out that facilitating eBook loans can be done with a website and without those expensive buildings and librarians? After all, some taxpayers may think that a former library would be a handy place to stockpile floor wax and road salt.

Photo by: AndreyPopov

When the State Steals Your Work – Podcast with Rick Allen

In March 2020, the Supreme Court delivered its opinion in the case Allen v. Cooper. The outcome was not surprising because the Court affirmed precedent ruling from the late 1990s which held that the 11th Amendment bars suing a state or state actors for damages stemming from intellectual property infringement.

Thus far, I’ve explored the murky waters of state sovereign immunity as it relates to Allen v. Cooper and other cases, including author Michael Bynum and photographer Jim Olive’s lawsuits filed in the State of Texas. So far, my focus in this area has been academic. But on February 8th, Rick Allen filed an amended complaint in North Carolina, and after I read that narrative, I wanted to invite Rick back to the podcast to talk more personally about his story, what it means to him, and what it should mean to anyone who hears it.

Show Contents

  • 1:15 Becoming an Underwater Cameraman
  • 11:06 Queen Anne’s Revenge Opportunity of Lifetime
  • 15:06 Wreck Diving and Filming
  • 27:19 Personal Investment
  • 37:20 Rare Cooperation Between Treasure Hunters and Archeologists
  • 43:00 A Near-Fatal Accident
  • 48:00 State Infringements
  • 59:00 Blackbeard’s Law
  • 1:05:00 Suing the State of North Carolina
  • 1:16:00 Implications for All Creators
  • 1:29:00 Overlap with Censorship

Photo of Rick Allen by Cindy Burnham.

Black History Month in 2023

“Black history is American history.”

There is more than one way to read (or use) that phrase. On its face, it affirms that no honest or thorough narrative about the United States can possibly exclude the Black story. But from there, one might say, as Morgan Freeman suggested in a 2005 interview with Mike Wallace, that to distinguish or compartmentalize Black history as a subject can also perpetuate racial divisions and tensions. Thus, the statement is paradoxical, pitting the moral or intellectual obligation to engage with the uniqueness of the Black experience against the idealism of a color-blind society.

Of course, we are not a color-blind society in the ways we should be (i.e., the playing field is not level), but even if that ambition were achieved, it is a fallacy to think that color blindness as a matter of justice is synonymous with colorlessness in cultural or intellectual pursuits. As I have said many times, I defend copyright rights because, in principle, they empower the individual to express herself as she chooses and then empower the public to make of that expression what it will. And the result is a diversity of works.

Despite critics’ implications to the contrary, copyright rights fundamentally reject state authority to approve or deny the production of creative works—a critical distinction between American copyright law and its common law antecedents in England.[1] Sadly, however, neither copyright nor the First Amendment can entirely prevent state actors from engaging in censorship through other legal mechanisms, which brings us to a more cunning use of that phrase, as when Florida Gov. Ron DeSantis proclaimed to the TV press that “Black history is American history” in defense of his opposition to part of the curriculum in the African American AP Course.

As the putative leader of a culture war determined to make enemies of neighbors, DeSantis and his ilk exploit the opportunity to tell as many Americans who will listen that to confront (or even hear) certain aspects of the Black story is inherently divisive and tantamount to insisting that White Americans should feel a sense of self-loathing. One cannot deny that there are individuals (Black and White) willing to add fuel to that fire or that there is both good and bad scholarship on every topic, including Black history. But these nuanced distinctions are not what DeSantis’s “anti-woke” political tactic is about, and neither could it be.

It is not possible or appropriate for elected officials to concern themselves with every citizen’s social conduct or every teacher/student engagement or to attempt ad hoc review of every scrap of cultural and academic material. Nobody in DeSantis’s Back to Sleep party has the time, let alone the intelligence, to judge the qualities of every book, essay, or curriculum it hopes to mute because the subject matter threatens the colorless myth of American exceptionalism.

In 1965, when James Baldwin famously debated William F. Buckley, Jr. at Cambridge University, the topic presented was “The American Dream is at the expense of the American Negro.” Baldwin received a standing ovation and won the debate 540 votes to 160. But did Buckley swoon like so many of today’s featherweight conservatives and declare the question itself off limits—too offensive to American idealism to confront? Or when he referred in that debate to Baldwin’s essay The Fire Next Time, can we safely assume that Buckley had read the book rather than make a cowardly proposal to ban it?

Nearly sixty years since that historic joust and almost thirty years after the so-called information revolution, and the progress (to which Buckley alluded in his rebuttal) is a mixed report nationally and a catastrophe in some regions. Columnist Stephanie Hayes, writing for The Tampa Bay Times, remarks on the maturity and deftness of high school students in Pinellas County who last week petitioned their school board to reverse its ban of The Bluest Eye, the first novel written by Nobel Laureate Toni Morrison. Kudos to the students, but seriously?

It is hard not to indulge in gallows humor when a novel published in 1970 is swept into a pathetic, rhetorical war against “wokeness” in 2023. Is there a Woke section in the library or bookstore? Not unless the curator of either is being ironic. Is “woke” the latest reason to shun Baldwin’s 1963 novel Giovanni’s Room? Or what about John Irving’s In One Person in which the protagonist’s coming of age as a homosexual is intertwined with literary discovery and, therefore, confronts Giovanni’s Room through that character’s experience? Is the dialog between Baldwin in 1963 and Irving in 2012 a prime example of “wokeness,” or is it just American literature?

Or, finally, returning to the phrase with which I started this post, is the uniqueness of Baldwin’s experience, in contrast to Irving’s, a reason to celebrate Black History Month? I think so. Not because it is popular to think so, but because although it is true that Black history is American history, it is a subtle but important distinction to say that it is also Black American history. And that story is so complex and distinctive in the world that it is little wonder there are so many extraordinary Black American authors of extraordinary works.

[1] Copyright critics like to point to the fact that proto-copyright regimes in England were intertwined with first the royal prerogative and then then the government’s authority to license the production of certain works, but the U.S. did not retain the power of censorship in even its earliest copyright laws.

James Baldwin photo: Library of Congress, Prints & Photographs Division, Carl Van Vechten Collection, [reproduction number, e.g., LC-USZ62-54231]