Tag: authors

An Open Letter from a Copyright Nerd to About 300 Authors

Dear Authors (“the undersigned”):

It’s not your fault. You mean well. But you are simply wrong to have signed that letter—the one written and orchestrated by Fight for the Future (FFTF), which misrepresents the case Hachette et al., v Internet Archive as an attack on libraries. If I were not a copyright nerd, and I were told that this lawsuit seeks to undermine “traditional library rights,” I probably would have signed that letter, if asked. But the parties calling this a case about library survival are exploiting your good nature and the likelihood that you do not know much about this case. In fact, Authors Guild, in its response this morning states:

“In speaking with authors who signed this letter because they support public libraries, as we do we [sic], they feel misled about the purpose of this letter. For instance, Daniel Handler (Lemony Snicket) disavows the letter and supports the lawsuit.”

The reason I advocate copyright rights is simple enough. I love the arts and firmly believe that a democracy without empowered authors and artists is doomed to become something other than a democracy. As I have been a copyright advocate (and nerd) for just over a decade, I don’t think it would be arrogance at this point to say that I am one of a handful of non-attorney experts on the subject. Not only does my experience encompass a solid knowledge of statutory law, case law, and the history of core doctrines, but it includes many encounters with the tactics of those organizations and individuals who want to strip authors of their copyright rights while disguising that agenda in the rhetoric of democracy, liberty, and defense of the underdog. Internet Archive and Fight for the Future are two organizations baptized in that ideology, and its leaders and comms teams do not scruple to employ tactics indistinguishable from other bullies and liars.

For instance, are you “the undersigned” aware that FFTF engaged in author-shaming on social media? They tagged writers and asked them baseless, rhetorical questions about “helping to sue IA” and whether they really want to keep their books away from “families who can’t afford them.” Surely, you are all keen enough observers of human nature to know that merely tagging authors with such false implications is enough to foster threats—at least one author has received death threats—against some of them. I fail to see how such tactics by FFTF are any more ethical than the kind of ratfucking employed by Trump’s cult to intimidate poll workers, et al. But this is a travesty of the digital age—it is just so damn easy to lie about basic facts in an effort to win an argument in the court of public opinion that one is likely to lose in a court of law.

We have all watched as allegations about “stolen elections” and other staggering bullshit move frictionless at lightspeed through the Twitterverse. But we also breathe a little sigh of relief to see that at least in court, facts must be presented and weighed. And there is a reason why the facts presented in the case against Internet Archive have no resemblance to the allegations made in that letter you signed.

Although Internet Archive has provided us with some wonderful services—I have used its legal archive for research many times—the factual basis for the publishers’ lawsuit is that IA also operates a book scanning and distribution enterprise in a manner that is not allowed by copyright law and which looks nothing like the operation of your library or mine. The specific conduct that predicated the suit was IA’s so-called “National Emergency Library” in March 2020. Citing COVID shutdowns as an excuse, Internet Archive digitally distributed approximately 1.4 million in-copyright books without restriction of any kind—let alone any logic to the titles released, given its stated intent to “help students.”

So, in the simplest terms, no. This is not what libraries do. Real libraries operate within the boundaries of copyright law, which includes several statutory carve-outs written exclusively for those institutions. By contrast, IA asserts theories that are a) unfounded in law; and 2) have been described by Kahle and others as a prelude to changing copyright law in ways that would weaken authors’ rights–and even harm libraries. They have stated, for example, that they see this fight with the publishers as a step toward amending Section 109 of the Copyright Act (first sale doctrine), which is so shortsighted that it would actually dilute the value of real libraries over time. Those of us familiar with Kahle’s agenda recognized the “National Emergency Library” as a stunt—one which may have been intended to provoke the lawsuit now at hand.

It is Mr. Kahle’s consistently stated assertion that copyright rights are little more than a barrier standing between you and your readers. He and his ideological siblings at FFTF, EFF, et al. sincerely and consistently argue that your legal authority to negotiate terms for your labor and talent stands in the way of the public’s access to information and culture. And in the most basic terms, the implications of IA’s conduct—if the publishers were to let it go, or if the court allowed it—would be to substantially undermine the foundation of the only labor right you have as an author. If you believe Mr. Kahle is correct—that the world would work better without those rights—then your signature belongs on that letter. But speaking as a copyright nerd, I assure you that history rejects this view.

During most of the nineteenth century, American publishers hardly invested in American authors for one simple reason:  because the absence of international copyright treaties meant that it was cheaper to reproduce unlicensed copies of European books than it was to publish, and therefore pay, an American author. This is why Walt Whitman advocated for the formal recognition of international copyrights throughout his career, barely living long enough to see the first such American law pass in 1891. Ideologues like Mr. Kahle and his friends talk about a future in which all creative works are unfettered by copyright, but what they don’t mention (or perhaps don’t know) is that we’ve been there, done that. And it sucked.

Another observation I hope I can offer without conceit or offense is that after ten years, I would say that not even the most rights-sensitive authors tend to know a great deal about the particulars of copyright law. And why would you? It’s tedious arcana for attorneys and agents. But this is also why it is dismaying to see names like Neil Gaiman among “the undersigned” while his books and characters are so prominently adapted into motion picture projects and merchandise worth millions.

Because I want to ask whether you are aware, Neil, that the only reason you must be consulted or compensated for those adaptations in the U.S. is Section 106(2) of the Copyright Act? Or that this “right to prepare derivative works” has its origins in a 1907 lawsuit involving the first film adaptation of Ben Hur? Or that the authors’ right to be paid a higher percentage on sales of ebooks than physical books is predicated on this same part of the statute?

So, what I’m saying is that copyright is complicated; you “the undersigned” all benefit from it; authors less prominent than you really depend on it; and you just endorsed the people whose stated agenda is to trash it in ways you probably don’t understand. This is so not about libraries.

Book Bans Should Remind Library Groups that Authors’ Rights Matter

If I believed in Hell and a “special place” reserved for certain villains, I would say that one of those suites in the stygian underworld is the destiny of all book burners. And lately, it seems that room is getting overcrowded. According to a recent story in The Guardian, “the ALA has been tracking bans for two decades and reported that 2021 was the worst year for attempted censorship yet, with 1,597 books challenged,” writes Maeve Higgins.

Higgins reports that certain conservative groups in the U.S. are targeting libraries through a variety of political mechanisms with the purpose of banning books that include or address LGBTQ+ rights, race, sexuality, and the usual catalog of verboten lit among the mouth-breathers. Meanwhile, the Neo Nazis and Proud Boys are simply showing up at library events with the purpose of intimidating staff and visitors.

Book bans are nothing new, of course, but if librarians are sentinels defying those forces, I would remind the leadership of the American Library Association (ALA) et al. that the authors are not only on the same side but are often directly in the crosshairs of censors. And what protects the author best is the market. When copies of Maus sold out after a Tennessee school board banned the book, the response was more than satisfying—it was important. Because that’s how the market protects the voice of Art Spiegelman and the voice of the next author who writes the next book some idiot wants to destroy.

I mention this because when it comes to copyright law, it’s almost as if the ALA and other library associations forget that behind that book about race or gender or the Holocaust—or whatever topic frightens the snowflakes on the far right—is an author. Maybe the author is gay or Black or trans or Jewish, or some combination of these and other experiences that are as worthy of expression through storytelling as any other. But the author’s financial reward for her labor is precarious at best.

The median income made from writing alone is $20,300 per year, and those who say that this is due to capitalism and the greed of publishers have no idea what they’re talking about. Even with its myriad imperfections, only a free market can produce the kind of diversity in literature and cultural works we enjoy in the U.S., and foundational to that market is the bundle of authorial rights protected by copyright law. It should be obvious that library organizations are the author’s natural ally on these matters, just as they stand shoulder-to-shoulder to oppose censorship. But sadly, the connection seems to elude the ALA and many of its cohorts.

To be clear, I do not believe that individual librarians tend to forget the authors. In fact, I am certain this is not the case. The individual librarian is often the author’s best friend and strongest advocate. But your local librarian is also not the person who decides which policies the ALA et al. pursue, and in the area of copyright law, these groups have wasted extraordinary time, energy, and money on efforts to weaken copyright rights in ways that would not only harm authors, but which would obviate the need for most libraries before long.

To be absolutely blunt about it, the library associations have been duped on copyright issues. Not because they are fools, but because they mean well. Their best intentions have been used against them by parties whose motives—whether ideological, financial, or both—demand opposition to the copyright rights of authors. For instance, the ALA has recently expended vast resources pursuing state legislation to undermine ebook licensing models, despite the fact that these bills are unconstitutional on their face and, when we look at the numbers, appear unnecessary to the purpose of serving library communities.

The library associations have also backed commercial ventures seeking to distort the fair use and first sale doctrines in copyright law, revealing a shortsightedness that is hard to fathom—both because it turns allies into antagonists, and because some of those commercial ventures would swallow the role of many libraries. Equally naïve is the tacit endorsement library groups have given to the Internet Archive’s invented theory of “Controlled Digital Lending,” which would aggravate the economic precarity of authors and would be hazardous to libraries everywhere.

If IA’s founder Brewster Kahle achieved his stated ambition to build a free repository for “every work ever created,” what do the library associations imagine happens next? While the number of professional writers would be decimated, libraries across the country would be shuttered as obsolete relics. After all, if one segment of a community will vote to defund the local library for hosting Drag Queen Story Time, and the readers in that same community can get everything from a central database on the web, who will pay to keep a library’s doors open and why?

And before long, which entity is really going to own and control that universal repository of everything? Google? Amazon? Meta? If you think localized book bans are bad, imagine Meta and its invisible star chamber influencing books the way they currently moderate comments on Facebook. I would think most librarians are wise enough students of history and current events to see where weakening authors’ rights can lead, which brings us to the question of who convinced these associations to pursue copyright boondoggles and make unnatural adversaries of authors?

Ivory tower academics and lobbyists who receive substantial funding from the tech industry are at the forefront of all efforts to weaken authors’ rights, including initiatives alleged to be in the interest of libraries. Just review the names of the amici who filed for the defendant in Hachette et al v. Internet Archive, and it will not take long to see the intersection of Big Tech money and advocacy of IA’s false claim to be a surrogate for “all libraries.” Such proximity to Silicon Valley should be a bright yellow flag for the ALA, but like the frog carrying the scorpion, they remain willfully blind to the true nature of that industry and its utopian promises.

Librarians on the front lines in the contemporary assault on literature should keep in mind that there is more than one way to prevent a book from being read; and censorship, infuriating as it is, has often been defeated by the market. A far more effective means to silence a multitude of writers would be to ensure that their books are never written in the first place, and one way to achieve that end is to weaken the copyright rights of authors and further limit their power to change the world.

Considering Jessica Litman’s Call to Rethink Copyright Doctrine

One of the more popular talking points among copyright critics is that copyright only works for corporations but not for individuals. Thus, debate about copyright’s purpose and legal contours is often an extension of the broader condemnation of corporate power in our democracy, or even capitalism itself. For this reason, when activist groups like EFF or Public Knowledge declare that “only corporations benefit from copyrights,” it’s a dog whistle that triggers a generalized, sympathetic response but which offers little serious thought about the premise itself.

In fact, the policies advocated by these organizations are so consistently and so broadly anti-copyright that they could never honestly claim to care how much or how little copyright does serve individual authors. For instance, recent assertions that the proposed CLASSICS Act is a “handout to labels” may be an easy pitch to sell in this climate, but it isn’t remotely true based on any sensible understanding of what the bill actually does.

Setting a New Tone?

A recent paper by law professor Jessica Litman, at the University of Michigan, recommends that copyright scholars take what she considers a fresh approach to understanding copyright’s benefit to individual authors by first extricating themselves—both personally and professionally—from the macro-debate being waged by very large corporations. She suggests that she and her fellow scholars are too caught up in the business fight between legacy intermediaries (publishers, labels, studios) and new intermediaries (online platforms). “Copyright scholars can safely leave them to work it out without our help,” she writes. “If the core question in that dispute is whether the law ought to favor publishers over platforms or vice versa, the answer is unlikely to significantly change the copyright ecosystem. Neither side has much of a claim to the moral high ground.”

Although this is her preface and not her thesis, it is necessary to interject that while I think the spirit of what she proposes has merit—that academics might look through the fog of big companies battling over turf—that she errs in a very significant way when she portrays traditional publishers and digital platforms as equals from the perspective of authors and their copyrights.

From the authors’ point of view, even the most predatory practices of legacy intermediaries still cannot compare to the outright theft of their rights—to say nothing of evangelizing that theft—by the internet platforms. This is why so many professional creators have offered variations on the theme that it’s their choice to negotiate licensing terms with traditional intermediaries, while the kind of piracy that enriches online platforms gives them no choice whatsoever. I’ll return to that topic, but Litman’s thesis is summed up thus:

“If a legal regime purportedly designed for the benefit of authors systematically short-changes them, why does that happen, and what options might we have to respond? The answer, I’ll suggest, lies in the ways that we, as lawyers, think about property rights.”

At the risk of being kicked out of the pro-copyright club, I think any scholarship that proposes to consider how copyright might better serve individual authors is worth analyzing at face value. Litman’s point deserves consideration inasmuch as she has not produced yet another paper, replete with overtones of collectivist whimsy, about the evils of copyright and the greed of artists. And to me, her paper does not read like thinly-veiled policy proposals designed to benefit Silicon Valley. Instead, she at least appears to ask a perfectly valid question as to why more authors don’t reap more benefit from the system.

The History of a Con Game?

The fulcrum of Litman’s thesis is that the first law to vest copyright in the author, the Statute of Anne ratified by England’s Parliament in 1710, was a maneuver by the publishers of the time to retain a monopoly they were about to lose. By royal charter between 1557 and 1709, the guild known as the Stationers Company, which comprised the trades necessary to book printing, had the exclusive right to publish all books throughout England and her domains. But, faced with the prospect that the charter would not be renewed, the Stationers were at least partly responsible for advocating the Statute of Anne, which, for the first time, vested copyright in authors.

Litman subscribes to the narrative that this was a tactic employed by the Stationers designed to temporarily grant a property-like right to authors, which could then be easily and cheaply acquired by publishers, thus restoring their effective monopoly. To emphasize her point, she compares the Statute of Anne to the U.S. Dawes Act of 1891, which granted tracts of land to native tribes so that they could be easily bought by speculators in transactions that look fair and legal but were really just a mass swindle. “If you are looking to get your hands on some arable land or to regain control of the printing texts, creating new property rights turns out to be an excellent strategy. Sometimes the original recipient of the property benefits, but not always,” Litman writes.

Thus, Litman asserts that the doctrinal practice of treating copyrights as property may be a root cause of the law’s failure to benefit authors relative to the way in which it benefits intermediaries. She writes, “The rest of the world followed that model. In almost every country, authors receive copyright protection as an initial matter, but those copyrights are transferred to and then owned and controlled by publishers and other intermediaries.”

Without writing a five-thousand-word post, it’s worth keeping in mind that the story of the Stationers Company is more complicated than Litman states; that copyrights are not exclusively transferred to intermediaries in ways that are disadvantageous to authors; and that American copyright practice, especially after 1909, diverges substantially from England in 1710.  So, while Litman presents an interesting historic parallel, I would caution against giving it too much weight if her purpose is indeed to examine 20th and 21st century copyright doctrine to the benefit of individual authors.

If Not Property What Then?

With that in mind, my first response to Litman’s proposal that copyright’s weakness lies in the legal doctrine binding copyright to property law, is that perhaps copyright shares more natural rights qualities than many of her colleagues may be willing to admit. If the problem, as she states, begins with the fact that property is alienable and, therefore, designed to be sold, then does this mean scholars are willing to entertain the possibility that copyright is also inalienable? That it functions like a labor right as well as a property right?

Property is alienable, can be sold, transferred, bequeathed, etc. But a labor right is inalienable and does not last beyond the life and physical being of the individual. When an author agrees to a licensing contract with an intermediary, she shares a kinship with any other worker signing a labor contract, but for the fact that the author has sometimes already performed the labor while other workers agree to terms for labor yet to be done. Or, conversely, a musician who signs a multi-album contract is negotiating both property and labor at the same time, and his bargaining position is founded on the copyrights in the creative works yet to be produced.

Individuals are vested with the natural right to negotiate terms for their labor throughout their lifetimes, and this right is never diminished, no matter how many works an author creates or how many jobs another kind of worker holds. Of course, possession of this right does not guarantee that the market will be fair or that intermediaries or employers will not be predatory. But this is comparable to the fact that non-discrimination laws do not eradicate discriminatory feelings or behaviors. In other words, human flaws like bigotry or greed do not mean the rights codified into law are doctrinally flawed, and I am concerned Litman may be straying into this logical fallacy.

At a very basic level, negotiating a licensing contract is not that different from any other contract for the exchange of labor. The more perceived value the laborer or rightholder possess, the better her bargaining position (e.g. an author with a money-making track record is like a job applicant with a great resume). To the extent that an author needs an intermediary—and Litman states that this is necessary—I don’t see how this fundamental rule of investment (i.e. that more perceived value equals greater negotiating power) is going to be altered whether attorneys are trained to think of copyright as property or not.

Economic Forces Are Independent of Copyright

As alluded to above, legacy intermediaries are just one sector within a worldwide consolidation of corporate power in liberal democracies. The forces that continue to fuel this trend—and presumably any potential remedies to these forces—are almost certainly independent from copyright doctrine. So, if a copyright scholar were to examine negotiations among authors and intermediaries across various decades, I would hypothesize that copyright is a universal constant relative to other factors that lead to either more predatory or more symbiotic contractual arrangements.

As a simple example, Hollywood in the late 1980s was marked by a climate of spec-script mania. Writers benefited from a commodities-exchange-like feeding frenzy, with studios paying huge prices for specs. It wasn’t necessarily rational, but this screenplay bazaar had little to do with copyright doctrine and everything to do with various market forces driving studios to behave in this manner. Today, a spec writer is in a much weaker bargaining position than that period, but is simultaneously bolstered by the fact that entities like Netflix are currently spending huge volumes of capital in order to bulk up their programming as quickly as possible. This trend will shift at some point, and, again, will have little to do with copyright doctrine.

Putting Their Own Theories to the Test

In the same way that academics should be mindful of non-copyright-related forces in this context, I think they should also consider some of the non-measurable benefits that authors—correctly or not—perceive when they enter into deals with intermediaries. I am currently writing a non-fiction book and have signed a publishing contract with a university press. As Litman and her colleagues know very well, such an arrangement is basically writing on spec under contract for nothing that anyone would consider real money.

Most academics who publish books do not make much money from the books themselves, yet I suspect the reasons they sign deals with publishers like university presses is that, like me, they recognize various benefits that transcend money. Among these benefits is that writing a book is hard enough without being entirely alone in the editing, production, and marketing of the book; and the imprimatur of a known press is not without value.

So, because many copyright scholars have full-time jobs with tenure, benefits, and PhD after their names (i.e. financial security most authors do not have), I would suggest that any academics who might heed Litman’s call and eventually propose alternative models to distribution should be among the first to test their theories with their own works. (Kinda like the mad scientist with the new drug who injects himself first to see if he’ll turn into Mr. Hyde.)

Many of these scholars can look to their own careers as authors and ask themselves why they enter into contracts with publishers when these deals are not expected to yield a substantial portion of their incomes. The answers to those questions may provide an opportunity to step out of the ivory towers and into the authors’ shoes; and if Litman and colleagues truly want to understand how copyright can better serve individual creators, thinking like creators might be a good place to start.