Best Selling Author Barry Eisler On Copyright, Piracy And Why SOPA/PIPA Are 'Extremely Disturbing'

from the papyrus-scrolls-are-difficult-to-pirate dept

Wed, Nov 30th 2011 11:51am — Mike Masnick

I've written about best-selling author Barry Eisler a few times, for his recent decisions to turn down a half million dollar publishing deal in order to focus on alternative paths to bringing his books to market (first self-publishing ebooks and then doing a deal with a much more innovative and nimble Amazon). I had the pleasure of meeting up with Barry for lunch recently, where we had a fascinating conversation on a variety of topics -- some of which we decided to turn into a few interview posts for Techdirt. The first one is on copyright, a subject Eisler is quite familiar with. Prior to becoming such a successful author... he was an IP lawyer. Of course, now, as an author, many might think he would support stricter copyright laws, but he actually goes the other way and makes a bunch of cogent points not just on copyright in general, or even the legal proposals like SOPA and PIPA, but also why we're in such a situation with those laws being proposed.

Techdirt: While millions of people know you as a bestselling novelist, many people might not realize that prior to your career as a writer you were an intellectual property lawyer. Obviously, the combination gives you an unusual perspective on the question of copyright law. What are your thoughts on the state of copyright law today?

Eisler: It�s out of balance. The purpose of copyright laws�indeed, the purpose of intellectual property laws generally�is to create a limited monopoly on the part of the copyright holder sufficient to incentivize artists and inventors to create. The theory behind copyright is that without a means by which they might profit from their work, many artists might not bother, in which case the wider society would be denied the benefit of paintings, movies, music, novels, software, etc. But extending the monopoly past the point at which it creates the incentive itself is harmful to society, because doing so keeps copyrighted works out of the public domain. Think of it this way: anything beyond what�s required to incentivize artists is a windfall to artists and a detriment to society.

Historically, copyright law has moved in one direction only�it�s expanded. A common theory of copyright is that great protections must be good for authors, and if it�s good for authors, it�s good for the public. In your experience, is that accurate... and as an author, how do you feel about this view of copyright law?

Many people approach the question of how long a copyright should endure from the standpoint of what�s fair to artists (purely coincidentally, many of these people are artists). �But the artist created it!� the thinking goes. �Shouldn�t she profit?�

The answer is yes�but unless you believe that, for some sort of artist-centric moral reason, the artist should profit forever (along with her heirs into perpetuity), the next question is, �For how long?� And this question is properly answered not only by reference to profits for artists, but also by a consideration of benefits for society.

Imagine you�re starting a new country and that you have three alternatives for the creation of the country�s copyright law. You can have no protection for artists at all, in which case less art and fewer useful inventions will be produced, meaning that society is denied the benefit of these unproduced items. Second, you can have copyright protection lasting forever, in which case art and inventions will be available but always at a price. Third, you can have a limited copyright term just sufficient to incentivize the production of art and useful inventions, in which case art and inventions will be available and in relatively short order will become part of the public domain. Of these three possibilities, if your primary concern is what is good for the wider society, you�ll design your copyright laws based on #3, and you won�t have a term that�s a day longer than what you judge necessary to incentivize artists and inventors.

Copyright terms have grown to be over a century. No reasonable person can claim that, with a term of less than a century, artists wouldn�t be adequately incentivized to create. So current copyright terms are clearly too long from the standpoint of what�s best for society overall. Personally, I think a twenty-five year term would be more than enough. Anyone who claims he wouldn�t bother creating if he could only commercially exploit his creation for a quarter century wasn�t going to create anything worthwhile anyway.

Frequently, the battles over copyright law are positioned as being the �tech industry� vs. the �content industry.� And yet, many of the innovations from the tech industry have resulted in a much healthier content industry�since the tech world provides many of the tools that help create, distribute, promote and monetize works. As someone who�s lived in both worlds, is this a battle between two sides? If not, why do you think many view it that way?

I don�t see it as a battle at all, for precisely the reason you articulate. For example, I sell more books now in digital than I ever did in paper, so without the advent of digital distribution technology, I�d be making less of a living from my books. Now, digital enables piracy in a way paper never did, so you might argue that digital is bad for authors, but this argument is belied by my own bottom line and that of increasing numbers of other authors. In fact, anyone who thinks that new distribution technology, by enabling piracy, must be bad for artists must also believe artists were better off in the age of papyrus scrolls and stone tablets, which, as we all know, are notoriously difficult to pirate.

Anyway, all these concerns about new technologies enabling piracy are missing a larger and more important point. To prove that piracy has hurt an artist�s profits, you have to demonstrate that: (i) the artist would be making more money in the absence of the pirate-enabling technology than in its presence (that is, that for example a novelist would be making more money in a pure paper world than in an increasingly digital one); and (ii) pirates, if somehow denied the opportunity to pirate the artist�s work for free, would have instead purchased a legitimate copy. These are exceedingly difficult things to prove and so far as I know no one has ever offered empirical evidence in support. By contrast, there is ample empirical evidence to show that piracy actually boosts legitimate sales.

One other thing you�d have to do to prove that piracy is harmful: you�d have to screen out the benefits of piratical word of mouth. Because how many legitimate copies were purchased as a result of the wider awareness of the work caused by pirates accessing it for free? Novelist J.A. Konrath, for example, practically begs people to pirate his books, and has sold over a half-million legitimate copies in part as a result. Anyone who believes there�s no word-of-mouth benefit to piracy must also believe there�s no word-of-mouth benefit to library loans.

The only way to fight piracy, and the best way to turn it to your advantage, is with cost and convenience. Fighting piracy with DRM and lawsuits is not only futile; it�s actually detrimental to the artist�s bottom line.

As to why some people insist on viewing the relationship between content and distribution technology as a battle, I think it�s a manifestation of a weird but widespread human tendency to think in either/or terms when more often things are both. Look at the way digital publishing is often discussed, with many people, including authors, insisting that writers must be legacy-published or self-published when common sense and empirical evidence demonstrate that in fact, authors can (and often should) be both.

I think there�s an element of fear at work, as well. After all, if we�re making a living one way and something disruptive comes along, it�s natural to see the new thing as a threat to what�s established rather than as an enabler of something even better, and we�ll often fight the new thing rather than opening our minds and figuring out a way to embrace and exploit it. Natural, but from a business standpoint, counterproductive.

Do you have any thoughts specifically about the new bills proposed in Congress to expand copyright law (SOPA in the House, PROTECT IP in the Senate) by making third party service providers liable for certain forms of infringement and/or requiring them to cut off access and services to accused websites?

I�d call these bills insane except that, like many bills that seem insane when you judge them by their ostensible purposes, this one begins to make a great deal of sense when you understand what it�s really intended to do. For example, you might wonder why the Bush administration scooped up thousands of terror suspects and tortured them in Guantanamo and black sites, or why Obama administration has been so public about its torture of accused Wikileaks whistleblower Bradley Manning. Both cases, at first blush, seem to be public relations disasters for the politicians in question, and it�s only when you understand what these politicians are in fact trying to accomplish�a demonstration that the US government can pluck you out of any recognizable legal framework, prevent you even from access to a lawyer and from visits from the Red Cross, hold you indefinitely and abuse and torture you mercilessly�that you can begin to understand that these policies are not insane, but are instead carefully designed to strike fear into the hearts of anyone who might oppose US policy or undermine its obsessive secrecy.

Similarly, you might think Obama�s attempts at health insurance reform were a fiasco, until you realize that it makes perfect political sense for him to pay lip service to progressive goals so as to garner progressive votes, and then blame Republican obstruction for the failure to achieve those goals and for the passage of insurance industry-serving legislation instead, thereby ensuring continued receipt of industry campaign contributions. Votes from the base; money from the corporations. Every politician�s wet dream, and no accident when it happens.

So yes, on the surface, the notion that the government might via SOPA shut down any website that doesn�t police content to the government�s satisfaction seems insane�as insane as penalizing kitchen knife manufacturers for stabbings or automotive companies for drunken driving or telcos for crank calls. But when you consider that SOPA will not only grant content providers enormous power to intimidate and disable content outlets of which they disapprove�a shortcoming that has been extensively covered here on Techdirt and elsewhere�but also that SOPA will give the government, too, unprecedented power to police Internet content, you start to understand that from a certain nefarious perspective, SOPA begins to make a great deal of sense indeed. And for anyone who values Internet freedom, such a purpose and result should be extremely disturbing and worthy of a fight.

As someone who has long relied on new technologies yourself�and who is now betting strongly on ebooks�do you worry about the unintended consequences of bills like these to actually do more harm than good to your own efforts as an author?

I do. Every time content providers try to slow, control, or stop new distribution technology, they wind up hurting not just consumers, but also themselves. Hollywood fought television and then video recorders, both of which turned out to be huge Hollywood moneymakers after Hollywood�s litigation attempts failed. The music industry succeeded in destroying Napster, and in the process helped turn Apple into the world�s largest online music retailer, with the record labels as its supplicants. Lower-cost, more efficient distribution methods are developments content providers should embrace, not attempt to stymy, and fighting technologies that benefit consumers is about the best way I can imagine to lose money, create new pirates, and seed business opportunities to competitors.

And of course, then there�s the problem of a new Chinese-firewall level of governmental control over content. But as I note above, that�s not an unintended consequence. That one is by design.

What would you say to the big traditional publishers in New York who think laws like this are necessary?

I�d tell them to make original mistakes instead of repeating ones already made by the music and movie industries. I�d tell them to stop relying on monopoly rents to shore up their business and learn to compete in the digital marketplace, instead. I�d tell them that properly understood, digital distribution is an enormous opportunity, not a threat, and if they could only focus on building windmills rather than windbreaks, they could survive and even thrive in the digital world that, whether they like it or not, is fast displacing analogue.

Thanks to Barry for an enjoyable conversation. We'll have a further discussion more specific to publishing and his experiences there soon....

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Filed Under: barry eisler, copyright, pipa, protect ip, sopa

53 Comments

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Mike Raffety (profile), 30 Nov 2011 @ 12:21pm

The problem with Amazon e-books ...
And the reason I have no plans to buy a Kindle any time soon, is that you cannot sell or give the book to someone else when you are done with it. It's pretty rare that I read a book twice; I normally give it to a friend when I'm done, and encourage them to do the same (not give it back to me).

While I admire Barry Eisler's embrace of e-book technology, Amazon's current "ownership model" (for lack of a better word) is a one-time license with no transferability, not a sale. This is why they were able to reach out and delete a book when they decided it was a mistake.

He has some excellent viewpoints on copyright, but Amazon is not the solution either.
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- John Doe, 30 Nov 2011 @ 12:24pm
  
  Re: The problem with Amazon e-books ...
  I agree with you completely. I am not a fan of ebooks as they are implemented today. We need open, DRM free ebooks. It makes no sense for digital "property" to be artificially restricted way beyond the natural restrictions that exist with physical property.
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  - Richard (profile), 30 Nov 2011 @ 12:38pm
    
    Re: Re: The problem with Amazon e-books ...
    We need open, DRM free ebooks. It makes no sense for digital "property" to be artificially restricted way beyond the natural restrictions that exist with physical property.
    
    You need Russian lessons - what you want already exists for Russian speakers - see rumvi.com.
    
    (Frustrating isn't it?)
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  - Anonymous Coward, 30 Nov 2011 @ 10:59pm
    
    Re: Re: The problem with Amazon e-books ...
    Actually there are (as one commenter has already pointed out) many DRM free books on Amazon. The reason I won't by from them is that you need a 'registered kindle device' to even get the free books. I'll stick with the likes of Baen, Naked reader Press ans Smashwords for.
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- Carolyn Jewel, 30 Nov 2011 @ 12:56pm
  
  Re: The problem with Amazon e-books ...
  Mike:
  
  Actually, the ownership model you reference comes from book publishers. DRM and lendability are options set by the publisher, not Amazon.
  
  I think what you mean is that if you buy a book through Amazon, regardless of what restrictions a publisher may have placed on what you can do with the file, that file is not natively transferable to a competing device.
  
  Clever, and annoyed readers have found ways around all these things.
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  - Rikuo (profile), 30 Nov 2011 @ 1:09pm
    
    Re: Re: The problem with Amazon e-books ...
    I love my Kindle. I just don't buy books from Amazon, prefer to get free e-books.
    Now, blue/bob/similar people: try and twist that into Amazon somehow profitting from other people's work. All they did was sell me a device: they have absolutely nothing at all to do with what I choose to use my device for.
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    - Anonymous Coward, 30 Nov 2011 @ 1:29pm
      
      Re: Re: Re: The problem with Amazon e-books ...
      They sold you a device at a loss hoping that you would buy content from them. This is sort of like some of the business models that have been mentioned on this site for musicians. Give your music away for free and then sell trinkets. You took Amazon's "music" (this is an analogy where the Kindle is being used in the place of music and vice versa) and you aren't contributing to their continued success.
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      - Gwiz (profile), 30 Nov 2011 @ 1:40pm
        
        Re: Re: Re: Re: The problem with Amazon e-books ...
        You took Amazon's "music" (this is an analogy where the Kindle is being used in the place of music and vice versa) and you aren't contributing to their continued success.
        
        So what? If a brick and mortar store offers a item at a ridiculously low sale price and that is all I buy from them, that is somehow bad? And all this time I thought I was simply being frugal, not some destroyer of commerce.
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        Anonymous Coward, 30 Nov 2011 @ 1:47pm
        
        Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        The point I was making was that telling musicians to give their music away and to profit from selling bumper stickers is not sound advice. I was using Rikuo's kindle as an example of the failure of this business model.
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        Gwiz (profile), 30 Nov 2011 @ 1:58pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        Ahhh. Not a real good comparison though.
        
        I don't know the minds of other people, but these two situations are very different to me. I want to support my favorite musician. I want them to succeed, I want them to make more of the music I like.
        
        As for Amazon or my local supermarket, I couldn't care less if they succeed or not. If they fail, some other store gets my business.
        
        You can't forget the Connect with Fans (CwF) part of the equation, it's pretty important.
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        Anonymous Coward, 30 Nov 2011 @ 2:49pm
        
        Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        If you like the kindle and want there to be future generations of the product line you would need to support Amazon as well. It is an apples to apples comparison.
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        Anonymous Coward, 30 Nov 2011 @ 7:00pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        And apparently it is doing pretty well since the Kindle started at a normal price point and then it was observed that the average sales would make up for the reduction in price and be compensated by the spread of the "platform" to more people who would spend more on it.
        
        Just like musicians give away their music on the radio for free to everybody and they even pay the radios to make them give away more(i.e. payola).
        
        You do not give away anything, just like a fisherman casting a net is not giving away his net.
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        rubberpants, 30 Nov 2011 @ 1:59pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        The difference here is that Amazon isn't giving away e-books. They are selling them, and at quite high prices. Your comparison doesn't make sense. It's "sort of" the same in that it's a business model, but that's about where it ends.
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        Anonymous Coward, 30 Nov 2011 @ 2:51pm
        
        Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        They are giving away PART of the Kindle, because they are losing $9 per Kindle (at least according to the latest cost analysis of the Kindle Fire I read last week).
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        Anonymous Coward, 30 Nov 2011 @ 6:45pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        How do you know they are losing anything stupid?
        Do you have the total for the sales of the Kindle and how much the subsequent sales of digital goods on that platform brings in?
        
        Is like telcos giving away cellphones and forcing you to sign a 2 year contract.
        
        I guess your brain just can't handle some concepts.
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        Rikuo (profile), 30 Nov 2011 @ 2:02pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        "I was using Rikuo's kindle as an example of the failure of this business model."
        
        Your example failed because you equated a scarce physical good with an infinite non-physical good. The musician's music, once its stored digitally, is infinite. One tactic they can use to make money then is to sell concert tickets.
        In the case of Amazon and Kindle, if they're selling the devices at a loss and I'm not paying for e-books...so what? They made the conscious decision to sell a physical scare product at a loss and I took advantage. Nothing wrong in that.
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        Anonymous Coward, 30 Nov 2011 @ 2:55pm
        
        Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        You are ignoring the point of the comparison, which is that Amazon is losing $9 per Kindle hoping that people will buy it because the price is so low and then they expect to make a profit from the purchases from their online store (e-books, etc..). So they are giving away $9 worth of hardware and trying to sell e-books to make a profit. But you aren't interested in their e-books, just like I am not interested in buying bumper stickers from musicians.
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        Rikuo (profile), 30 Nov 2011 @ 3:41pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        And again...so what? Like I said before, I got my Kindle BEFORE they started selling at a loss. Just because they sell at a loss now doesn't mean that Kindle owners now have an obligation to buy e-books from Amazon. The loss strategy is a marketing strategy in hopes of getting me to buy e-books: in my case, they've failed. Whoop-de-freakin'-do.
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        Anonymous Coward, 30 Nov 2011 @ 6:43pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        And you ignored the fact that they are not giving $9 dollars away, nobody in the corporate world gives away money, they are making it up somewhere else.
        
        Are you one of those that believe in those ads that say "Free course for something" and when you get there you have to buy their books to take the course?
        
        Is not free stupid, it is paid by something else, just like musicians give away their music on the radio and the internet, because it has a value it brings in something else, but you are to dumb to understand that concept and go out of your way to be even more dumb.
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        ltlw0lf (profile), 1 Dec 2011 @ 7:10am
        
        Re: Re: Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        You are ignoring the point of the comparison, which is that Amazon is losing $9 per Kindle hoping that people will buy it because the price is so low and then they expect to make a profit from the purchases from their online store (e-books, etc..). So they are giving away $9 worth of hardware and trying to sell e-books to make a profit. But you aren't interested in their e-books, just like I am not interested in buying bumper stickers from musicians.
        
        I don't own a Kindle, yet every e-book that I have purchased from a major e-book publisher (and I have quite a few) came from Amazon. So, by your logic...I am defrauding the company because I chose to not buy a Kindle.
        
        Wow. Just Wow. You know, they do make software to read e-books outside of Kindle.
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        JMT (profile), 30 Nov 2011 @ 4:02pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        "The point I was making was that telling musicians to give their music away and to profit from selling bumper stickers is not sound advice."
        
        You're right, which is why nobody's ever suggested something so stupid.
        
        Next strawman?
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        Anonymous Coward, 30 Nov 2011 @ 7:13pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        The point you was making is that you don't understand that "free" is not "free" is the net being cast to attract customers to consume something else, it doesn't matter what it is being consumed(T-Shirts, apparel, bump stickers, coffee mugs, music, plastic disks, tickets or whatever).
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      - Rikuo (profile), 30 Nov 2011 @ 1:59pm
        
        Re: Re: Re: Re: The problem with Amazon e-books ...
        You fail because Amazon failed. Besides, when I bought my Kindle, it was before they started selling at a loss. So, what are you saying? Am I somehow obligated to buy e-books from them? As far as I can see, they released a device, put up a price for it, I paid, end of story.
        And I love how your analogy equates physical device with music. Gotta wonder how you twisted your thinking around that one.
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        Anonymous Coward, 30 Nov 2011 @ 2:57pm
        
        Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        Exactly, if a musician offers their music for free I will take it. I will not feel obligated to purchase a t-shirt, a bumper sticker or poster from them. I have no use for those things. I will gladly take their music thoough - if it's good.
        [ link to this | view in chronology ]
        
        JMT (profile), 30 Nov 2011 @ 4:11pm
        
        Re: Re: Re: Re: Re: Re: The problem with Amazon e-books ...
        It is well documented that fans of a band or musician do like to spend money on things they value, like live performances, merchandise, limited edition physical goods, etc. The fact tat you don't like any bands or musicians enough to do that doesn't take anything away from the concept.
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      - Atkray (profile), 30 Nov 2011 @ 3:36pm
        
        Re: Re: Re: Re: The problem with Amazon e-books ...
        If they choose to sell a product at a loss that is a business decision and a reasonably intelligent business person is going to consider that some people will buy the device and NOT purchase the add-ons.
        
        Example:
        I just purchased a cheap color laser printer because I was tired of spending $40 every time my kids printed a report for school on the inkjet printer.
        
        I'm pretty sure the manufacturer is counting on me buying replacement toner (apparently aftermarket ones don't have the correct chip) at their price.
        
        I on the other hand, intend to either run it dry and throw it away (my cost per copy will still be 1/3 what it was with the inkjet) or I may flash the firmware so that I can either refill the toner or run aftermarket ones.
        
        In either case the printer manufacturer will not be paid, unless when I throw it away I buy another one.
        
        The point is the printer manufacturer should have calculated this in making their business decisions and priced the printer at a point where even if it is sold at a loss enough people will but toner to justify the price. If they have not considered this, then too bad so sad, it truly is not my concern.
        
        I believe this is called running a business, and it really is the elephant in the living room that all the pro IP people seem to ignore. They want to be considered "artists" and "creators" when they should be shifting their focus to being business people. It appears that Mr. Eisler has made that jump and it is working out quite well for him.
        
        Personally, I think that if you view yourself as an "artist" or "creator" then you really shouldn't expect to be paid, you should do it for the love of your craft. If you are a businessman selling me some art,a movie or a song, I'm happy to sit down and talk to you and see if we can come to a mutually beneficial agreement about me compensating you.
        
        Now I realize that many creative people just are not wired for making business decisions but that is no excuse. If you want to run a business you need to make sure you can do it profitably. You need to consider it a business and if you lack the knowledge or skills to run it you should get some help or learn. The past model of relying on the gatekeepers to run your business for you (I'm talking to you ootb) is becoming increasingly less viable each day because of their failure to adapt and their obvious focus on their interests not yours.
        
        Giving something away is not inherently good or bad, it needs to be part of a comprehensive business plan.
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      - PaulT (profile), 1 Dec 2011 @ 1:16am
        
        Re: Re: Re: Re: The problem with Amazon e-books ...
        "You took Amazon's "music" (this is an analogy where the Kindle is being used in the place of music and vice versa) and you aren't contributing to their continued success."
        
        If they didn't build this into their business model knowing that some people would never buy books from them, then they're idiots and deserve to fail. It's part of how the industry works. Rikuo is under no obligation to pay them another penny if he prefers to use the device in ways that don't profit Amazon, as he should be.
        
        Sony sold the PS3 at a loss hoping to make sales up in games and online content. Some people just use it as a Blu Ray player and never play videogames. Should those people be punished because they bought (what is to them) a cheap Blu Ray player if Sony's gambit failed?
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- suzzy, 2 Jun 2012 @ 2:24am
  
  Re: The problem with Amazon e-books ...
  Not so, many companies like Barnes and Kobo have found ways to allow you to share your books to your friends.
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John Doe, 30 Nov 2011 @ 12:22pm

This is one scary quote...
And of course, then there�s the problem of a new Chinese-firewall level of governmental control over content. But as I note above, that�s not an unintended consequence. That one is by design.

This point now convinces me that SOPA will pass in one form or another. It will be a way for the government to act like they are protecting the people/artists while at the same time being given the power to do what they want with websites they don't like.

This is what scares me about this country. So many people are not just watching their freedoms disappear but are clamoring for the government to take them.
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Anonymous Coward, 30 Nov 2011 @ 12:38pm

I would really be interested to know what you believe makes one an "IP lawyer". My definition is one who is well versed and conversant in all aspects of patents, copyrights, trademarks, unfair competition, and other related causes (e.g., antitrust, export controls, etc.), at both state, federal, and international levels.

IP is a genus, and its subsets are species. One who practices only a subset is most definitely not an IP lawyer, an appellation which, by the way, I happen to eschew because it can be so easily be misinterpreted by persons in need of such legal services.
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- Anonymous Coward, 30 Nov 2011 @ 1:14pm
  
  Re:
  That seems a bit pedantic for this discussion.
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- Lawrence D'Oliveiro, 30 Nov 2011 @ 6:52pm
  
  Re: IP is a genus, and its subsets are species.
  No, and no. Those �species� have nothing in common, and are certainly not �subsets� of anything. Indeed, their characteristics directly contradict one another. For example:
  
  * There is no such thing as �fair use� of patents, whereas use of copyrighted or trademarked material is allowed in certain circumstances without needing the rightsholder�s permission.
  * Copyright has an independent-invention defence against infringement, patents and trademarks do not allow this.
  * Trademarks are �use it or lose it�; this does not apply to patents or copyrights.
  * Different companies in different industries can share the same or similar trademarks, this does not apply to copyrights or patents.
  
  IANAL, but at least I am not completely clueless...
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out_of_the_blue, 30 Nov 2011 @ 12:50pm

Guess Mr Eisler hasn't grasped the views of pirate extremists here.
"(ii) pirates, if somehow denied the opportunity to pirate the artist�s work for free, would have instead purchased a legitimate copy. These are exceedingly difficult things to prove and so far as I know no one has ever offered empirical evidence in support."

That's the standard strawman. In either case mentioned, producer gets cheated, and that's self-evident.

As for the whole technology enables greater distribution mantra: that's actually not a plus, as you frequently mention, in terms of control and getting income from it (which is THE goal of Big Media). And in any case, "technology" needs "content" more than the reverse.

"By contrast, there is ample empirical evidence to show that piracy actually boosts legitimate sales."

SO, Mr Eisler, you've NO objection if I "pirate" your work, effectively make it my own, without ever giving you even credit, let alone a nickel? That's really the crux here. Either copyright is good or it isn't. I'm betting that Eisler literally banks on copyright, regardless that terms have been unilaterally extended by others. -- It's the grab for more that I object to, while most of those here seem to think that copyright should be abolished entirely. Mr Eisler may be blithe about that NOW, as won't happen, but if pirates continue to increase, then yes, his own works will be completely stolen. Has to be stopped at some point, and we've reached that point, with The Pirate Bay, links sites, and "file-sharing" sites operating right out in the open.
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- Richard (profile), 30 Nov 2011 @ 1:04pm
  
  Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
  "technology" needs "content" more than the reverse.
  
  No - it does not.
  
  Without technology books have to be copied by hand, music is restricted to live concerts, film is only theatre and video doesn't exist.
  
  Technology however can get along just fine without content. Most of it was invented for military purposes anyway.
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  - Anonymous Coward, 30 Nov 2011 @ 1:22pm
    
    Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
    Lets see..
    
    Without content (written words, music, pictures, videos) what would you search for on Google?
    
    Without content there would be no iTunes, Netflix, Amazon (it was a book store remember), what am I saying, without content there would be no WEB PAGES AT ALL - they are after all content in their own right.
    
    It is definately a symbiotic relationship, they both need each other. One does not prosper without the other. The tech-suck (I just coined this term and I grant open rights to its usage) has left a void in the market. People have been sucked into this technological world with instant access to content and expect all content to be available. Music studios were burned in the 90s because they were not prepared for the rampant proliferation of illegal sharing. As bandwidth increased and storage became cheaper pirating movies became popular.
    
    The media companies need to create their own sites and put their entire catalog online as quickly as possible. They can do this and still license content to iTunes, Amazon, etc... They can compete with these legacy internet distribution sites (like iTunes, Amazon, even TPB) with their vast content library. Make it easy, cheap, fast and portable and they can destroy the pirate market. But I still support their efforts to curb piracy through enhanced enforcement of existing laws.
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    - John Doe, 30 Nov 2011 @ 1:31pm
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      Lets see...
      
      Without technology, authors would go back to hammer, chisel and stone tablets instead of Word processors and printing presses.
      
      Without technology, photographers would go back to lugging around large, heavy cameras instead of digital cameras and Photoshop.
      
      Without technology, movies would be in theaters only and there would be no DVD, Blue Ray or streaming.
      
      How many people create content now that technology has made it far easier to do compared to how many people did it under the old, more manual ways? My guess there are several orders of magnitude more people producing content now than there ever was before mostly due to technology making it easier and more accessible.
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    - Anonymous Coward, 30 Nov 2011 @ 1:45pm
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      "without content there would be no WEB PAGES AT ALL"
      
      The web is exist to communicate data, the fact that content can be compressed into data is incidental. Without content there would still be plenty of web pages full of data.
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    - Richard (profile), 30 Nov 2011 @ 3:36pm
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      Without content (written words, music, pictures, videos) what would you search for on Google?
      
      Let's be clear about what constitutes "content". Now you are right in one sense - iff content includes all forms of communication - however when the big media apologists make this point they mean "content made by big media on which copyright is enforced". I'm happy to extend that to cover other content similar to their content - however I think a sensible defintion, for the purposes of this discussion would only include "content, for which copyright is available, which was produced for direct money making purposes. This would exclude :
      
      1. Factual and mechanically produced information (not eligible for copyright).
      2. Content that is a byproduct of some other activity (may not be eligible for protection, not produced directly to make money.) - eg personal info on social network sites, online shopping pages etc.
      3. Amateur content - produced without motivastion of financial return.
      
      As my current browser stands none of the nine tabs points to content. If you include amateur produced content as "content" - ie stuff that is similar in structure to some "professional content" then maybe one or two tabs out of the nine would count - so the technology has pelntyu of work to do without the type of content that the entertainment industry apologists talk about.
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      - Richard (profile), 30 Nov 2011 @ 3:40pm
        
        Re: Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
        btw - for defintion read definition, for pelntyu read plenty but iff really does mean iff (if and only if for those not familiar with Math(s))
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    - Anonymous Coward, 30 Nov 2011 @ 7:08pm
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      "Without content there would be no iTunes, Netflix, Amazon (it was a book store remember), what am I saying, without content there would be no WEB PAGES AT ALL - they are after all content in their own right."
      
      Well, are you saying that all of those lolcats are not content?
      All of those dancing babies are not content?
      All of those communications between people are not content?
      
      I don't think you or any industry in this world can produce the volume of content that people put online, so I find it delusional to believe that without you or anybody to create content for the masses it wouldn't happen.
      
      You are not the whole internet, you are just a tiny piece of it that nobody cares except maybe your parents.
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    - TtfnJohn (profile), 30 Nov 2011 @ 8:01pm
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      The Web and the HTTP protool were developed in order to make it easier to find and read academic works on the Internet, such as it was in the early 1990s. So called "Big Content"/"Big Media" were nowhere to be found. Nor would they be until high speed to the home connections became more and more commonplace in the late 1990s.
      
      If you're referring to the MPAA and RIAA, then, you're wrong. The Web, so often confused with the Internet as a whole, doesn't need content (at least from them) it got it other ways, often what we now call "user generated" before then. Those two entities need a healthy Internet (as a whole not just the Web) far more than the Internet and the technology behind it needs them.
      
      Do keep in mind that most of the software the internet runs on is open source GPL licensed software with the odd bit of BSD licensed material out there. To even be deployed on the internet software has to be open source.
      
      Content is generated to fill the available space. What IP maximalists always seem to miss is that humans, as a whole, create for the sheer fun of it not because most of us ever expect to earn a living from it or care a plug nickel about copyright as it doesn't affect them. he Internet filled with content long before high speed connections came along or "big media" took even so much as a cursory interest.
      
      Music studios were burned in the 90s because the product was overwhelmingly crap. People put up with downloading the odd song over dial-up because what was available in stores was both junk and expensive junk at that.
      
      The rampant file sharing didn't begin until the wide introduction of high speed services such as ADSL and cable near the end of that decade and member firms of the RIAA were already into steep decline NOT because of piracy but because no one was buying what they were selling.
      
      Member firms of the MPAA were in decline for the same reason. Overly expensive films in cramped, airless multiplexes. The experience of seeing a motion picture had declined to something similar to being packed onto a bus downtown at rush hour. And just as smelly some days. The entertainment on the bus and street were and, often, still are superior to what you'll see in a movie theatre.
      
      People weren't sharing files on Napster because they didn't want to pay the artist, there were sharing files on Napster because they knew that on the average CD that out of 10 songs there was one and only one, maybe 2 that they wanted to listen to. That as much as anything was the driver behind Napster. Crappy product not a desire to rip off an artist. And as member companies of the RIAA wouldn't sell the "singles" people were interested in they found their own way to get them.
      
      Along comes high speed and the process speeds up and the AA's notice and scream foul though they're largely responsible for the file sharing to begin with.
      
      As for going so far as to actually compete with sites like iTunes and Amazon need I remind you that they fought both of them every step of the way and finally capitualted not because they wanted to but because they didn't (and still don't) understand the Internet or the World Wide Web. As for setting up to drive at iTunes I suspect Steve Jobs was smart enough to make sure that the RIAA and MPAA members who signed up there had to sign onto the dotted line with some sort of non-compete agreement.
      
      Yes, big media could destroy the gray market if they had the brain cells and talent to rub together to do it and the nerve to. But they have none of that. Running to big daddy government as cultural industries world wide have done screaming "protect me!!!" (and Candada just got a lecture from the MPAA again about free trade and our Canadian Content rules, ahhh, hypocracy..thy name is Hollywood).
      
      All of this done after the horses have left the barn and found the fields more to their liking than another night of slop in the barn so they ain't coming back in again.
      
      The biggest irony here isn't that Hollywood wants protection (again) it's that the industry with the most to lose from loosened copyright is the one leading the charge against SOPA and Protect IP. The tech industry.
      
      Every bit of software out there is covered by a copyright and protected by licensing arrangements whether it's Microsoft or GPL, to use the stuff you have to adhere to a license or you violate both the license and infringe on the copyright.
      
      The tech industry, though, clearly understands the ramifications of breaking the internet in a misguided attempt to protect what are rapidly becoming legacy industtires and the groups that represent them such as the RIAA and the MPAA and their attachment to copyright as a means of staying in business. (Won't work, even if SOPA is successful.)
      
      The core of the issue around file sharing/piracy is that the recording and motion picture industries largely brought it on themselves by not giving their customers what they wanted and then by charging extortionate rents when and if they did come up with something. Rightly or wrongly the customer said no and "routed around" the problem. Granted that infringment is wrong but in many people's views they aren't left with much of a choice my the self-appointed monopolists in the recording and movie businesses.
      
      The proposed laws aren't enhancement, they're a mulitiple warhead ICBM aimed at a flea. The warheads will explode and cause damage but the flea will surivive simply because the targeting is wrong. So called piracy won't stop, it may, in fact, increase as a result.
      
      And the Internet and Web don't need content half as much as content needs them.
      
      Empty movie theatres and closed record and video stores are ample proof of that. If Hollywood opts out by hiding behind the locked doors of a private garden someone else will produce that content. Nature, the Web and the Internet abhor a vacuum. The content will come. Hollywood's only choice is to stay and provide it, risky as it is or as sure as the sun will rise tomorrow morning someone else will. And copyright won't have a damned thing to do with it.
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    - Karl (profile), 1 Dec 2011 @ 5:45am
      
      Re: Re: Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
      Without content (written words, music, pictures, videos) what would you search for on Google?
      
      Maps and directions? Shopping for products? Weather? Laws and legal documents?
      
      It is definately a symbiotic relationship, they both need each other.
      
      On this, everyone sane is agreed.
      
      Music studios were burned in the 90s because they were not prepared for the rampant proliferation of illegal sharing.
      
      Record labels (not "music studios" - those are the places with 24-tracks and Neve mixers) were hardly "burned in the 90's." On the contrary, in the 1990's, profits were higher than they had been throughout the entire history of the music industry. Profits did not enter a decline until after 2001 (coincidentally, the year Napster shut down). In fact, profits today (adjusted for inflation) are roughly the same as they were in 1984.
      
      Also, what they were "not prepared for" was the Internet in general. To wit:
      
      The media companies need to create their own sites and put their entire catalog online as quickly as possible.
      
      They tried - several times. They failed, utterly. It was not until iTunes that digital music was able to be sold successfully.
      
      Make it easy, cheap, fast and portable and they can destroy the pirate market.
      
      This is absolutely true. Unfortunately, the music industry, and the wider "content industry," have absolutely zero interest in doing this. They have held a monopoly for too long; it is not in their nature.
      
      They are not going to do it on their own. They never have, not in their entire history. The only way they are ever going to "make it easy, cheap, fast and portable" is if other industries do it. Since it is the internet that has enabled this change, it must be primarily internet-focused businesses who do it.
      
      I still support their efforts to curb piracy through enhanced enforcement of existing laws.
      
      You should be against SOPA and PROTECT IP then. Both these bills significantly rewrite the law.
      
      And, let's be honest. Both from the language of the bill itself, and from the anonymous pro-SOPA/PROTECT IP people who comment here (some of which are lobbyists for media companies), the real target of these bills is not sites like The Pirate Bay, but sites like YouTube.
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- athe, 30 Nov 2011 @ 4:23pm
  
  Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
  "(ii) pirates, if somehow denied the opportunity to pirate the artist�s work for free, would have instead purchased a legitimate copy. These are exceedingly difficult things to prove and so far as I know no one has ever offered empirical evidence in support."
  
  That's the standard strawman. In either case mentioned, producer gets cheated, and that's self-evident.
  
  If I don't (can't) pirate an artist's work, but I also decide it is not worth buying it, how is the producer being cheated? Just because I can't access it freely (legal or not) does not mean that I am obligated to buy it in that case...
  
  "technology" needs "content" more than the reverse
  
  You keep saying this like it is some kind of mantra - really want it to be true, huh? "Technology" does not need "Big Media" "content". There's plenty of other content around that people will consume (YouTube, for example).
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- Stig Rudeholm (profile), 30 Nov 2011 @ 4:52pm
  
  Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
  SO, Mr Eisler, you've NO objection if I "pirate" your work, effectively make it my own, without ever giving you even credit, let alone a nickel?
  
  "Making it your own without giving credit?" That's not copying, that's plagiarism. You, the same as so many other people, can't tell the two apart. If I share one of Barry's books with someone, I don't claim to have written it. Barry is getting all the credit, believe me. And that will sell more books for him in the long run.
  
  Authors should not fear piracy. They should fear obscurity.
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- Bryan O'Doyle, 1 Dec 2011 @ 8:27am
  
  Re: Guess Mr Eisler hasn't grasped the views of pirate extremists here.
  WTF?????
  Where'd all my slashes/ slanty~thingy/dealies go? / get to/
  
  WTF? oh shit/ I left them ALL OUT IN THE OPEN /LAST *night*
  
  Cheers little buddy / nearing Christmas...
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Anonymous Coward, 30 Nov 2011 @ 1:07pm

Some of what this guy said made sense and then he went on a terrible tangent. Obama isn't progressive enough? His administration helped pass the largest liberal agenda since the civil rights movement and arguably the New Deal. He then claims that the US government is purposely launching a war of intimidation and implies that SOPA/Protect-IP is part of some conspiracy. I lost all respect for this guy when he pulled out his sickle and hammer.

Was he wearing a foil hat during the interview?
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- Joh nDoe, 30 Nov 2011 @ 1:42pm
  
  Re:
  I am no BO supporter, in fact quite the opposite, and I agree that sidebar was out of place.
  
  As for tinfoil hats, I no longer need one. I have trained myself to not think about what I am saying so that the government can't read my thoughts.
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  - Anonymous Coward, 30 Nov 2011 @ 2:30pm
    
    Re: Re:
    Did you get lessons from OOTB?
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- Jay (profile), 30 Nov 2011 @ 3:16pm
  
  Re:
  I believe that your tangential points are false.
  
  Obama's presidency is marred by an increased abuse of governmental power to protect a small group of people over the needs of the US.
  
  Look at ---
  
  --- his actions on Gitmo.
  --- the punitive punishment of Bradley Manning
  --- the soft banning of Wikileaks
  --- Joe Biden's stance on IP.
  --- the deportation of 400K immigrants through Secure Communities.
  --- the furthering of Bush policies.
  
  I don't know where you think Obama is passing a "liberal" agenda, but none of his actions actually match up to what progressives nor those centered around civil rights would necessarily call "democratic principles"
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- Stig Rudeholm (profile), 1 Dec 2011 @ 3:41am
  
  Re:
  when he pulled out his sickle and hammer
  
  Wow, calling a guy a communist when you don't agree with him?
  
  That's original...
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- Erich Boleyn, 30 Jan 2012 @ 10:04am
  
  Re:
  Lots of people (like myself) think that Obama isn't very progressive at all.
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Scott Nicholson, 30 Nov 2011 @ 4:28pm

SOPA is not only a crippling blow to personal freedom, it is also very damaging to entrepreneurship, placing more risk, regulation, and, inevitably, new taxes and costs, on digital content creators and other small businesses. And that's if the government happens to APPROVE of your message...God help you if they don't.
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Barry Eisler (profile), 30 Nov 2011 @ 11:12pm

Thoughts in Response
Thanks for the interesting discussion, everyone. A few thoughts in response:

Mike Rafferty, I think we'll continue to see Amazon experiment with different ownership and subscription models, with other companies following suit (and hopefully sometimes even taking the lead).

John Doe, I agree that if there's one thing SOPA has going for its passage, its how much power it creates for the government. See also the Protecting Children from Internet Pornographers Act of 2011. Not to mention the Patriot Act. When the government wants to sell something, they know how to package it.

John Doe, I tend to agree that DRM-free books are the way to go, and my titles with Amazon are in fact DRM free.

Anonymous Coward, you asked what I believe makes someone an IP lawyer. A lot of things, I suppose, and I don't mind if you feel the decade I spent practicing technology licensing law as an associate at Weil, Gotshal & Manges' Silicon Valley office, as in-house counsel for Matsushita Electric Industrial (Panasonic) in Japan, and as General Counsel for Dejima, a now-defunct Silicon Valley start-up, is insufficient to warrant the nomenclature. I'm generally more interested in discussing the merits of arguments rather than the CVs of the people making them.

Out-Of-The-Blue said, in response to my argument that, to show an artist was damaged by piracy, you must demonstrate that but for the piratical opportunity the pirate would have purchased a legitimate copy, "That's the standard strawman. In either case mentioned, producer gets cheated, and that's self-evident."

I don't know what you mean by cheated, so I don't know what's self-evident to you. My argument is that unless the pirate would have purchased a legitimate copy, the artist has suffered no loss from the piracy. This is no straw man argument; it's a matter of common sense, logical thinking, and what tort lawyers call "but for causation." To me, that's what's self-evident.

"SO, Mr Eisler, you've NO objection if I "pirate" your work...?"

Of course I'd rather you buy a legitimate copy (I'd also rather you buy my books than borrow them from the library or from a friend). But I'm willing to accept some piracy in exchange for the overall greater distribution and profits I'm able to achieve through digital. Similarly, a brick and mortar store might accept a certain amount of shoplifting in exchange for opening a bigger store, or for a floor plan with more entrances and exits to encourage foot traffic, even if more entrances and exits might mean more pilfering.

As for "Either copyright is good or it isn't," this is just silly. You might as well say any law, or even The Law, "is good or it isn't," when obviously the execution is going to matter at least as much as the concept. There is a tremendous breadth of possible copyright implementations, across subject matter, violative behaviors, and duration. Some combinations will be better; others, worse. For example, there might be sensible laws that could inhibit online piracy. SOPA isn't one of them.

"Piracy� has to be stopped at some point, and we've reached that point, with The Pirate Bay, links sites, and "file-sharing" sites operating right out in the open."

And yet somehow artists are still making money, especially if they know to fight piracy with cost and convenience.

You can't stop online piracy any more than you can stop shoplifting, drug use, or teen sex, and you'll do more harm trying than was ever done by the thing itself.

Carolyn said, "the ownership model you reference comes from book publishers. DRM and lendability are options set by the publisher, not Amazon." Yes -- and thanks for that clarification.

Another Anonymous Coward said, "Obama isn't progressive enough? His administration helped pass the largest liberal agenda since the civil rights movement and arguably the New Deal."

Other than some of his speeches, I don't see anything about Obama that I'd describe as progressive. I'm sure we won't be able to convince each other -- my tinfoil hat and hammer and sickle will likely be impediments -- but here are a couple links that will provide some of the basis for my opinion that Obama is an authoritarian much like his predecessor.

http://www.theatlantic.com/politics/archive/2011/11/why-do-liberals-keep-sanitizing- the-obama-story/248890/

And it's not just in unconstitutional wars; imprisonment of American citizens without charge, trial, or conviction; due-process free assassinations of American citizens, and unprecedented abuse of the State Secrets Privilege that leads me to conclude Obama can't be called even remotely progressive. It's on domestic policy, too. For example, he's been more aggressive on cutting Social Security even than the GOP.

http://www.washingtonpost.com/business/economy/in-debt-talks-obama-offers-social-security-cu ts/2011/07/06/gIQA2sFO1H_story.html

But actually, I don't care that much what you call him. Progressive, authoritarian, whatever. It's his policies that matter.

Joh nDoe said, "I am no BO supporter, in fact quite the opposite, and I agree that sidebar was out of place."

If it leads to too much discussion of Obama's policies at the expense of a discussion of SOPA, I'll agree with you. My intention was to show that sometimes you can tell what a politician really wants by the result he achieves -- by being open to the possibility that what you initially thought was a bad or even an insane result was in fact intended. But it might be that my example will turn out to be unduly distracting.

Jay -- ah, you wound up making many of the same points regarding Obama. Thanks.

Stig said, in response to an Anonymous Coward, "'Making it your own without giving credit?, That's not copying, that's plagiarism� Authors should not fear piracy. They should fear obscurity."

Indeed, and thanks for that clarification.

TtfnJohn, nicely said.

Thanks again everyone for taking the time -- I always learn a lot from the discussion.

Best,
Barry
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