Author's Guild Boss On E-Book Price Fixing Allegations: But... But... Brick-And-Mortar!

from the you-rarely-find-so-much-'wrong'-all-in-one-place dept

No sooner had the Department of Justice announced its plan to investigate Apple and five of the Big Six publishers for e-book price-fixing than a representative of those benefiting most from this (alleged) collusion boldly stepped into the fray. Scott Turow, bestselling author and president of the Author's Guild, has issued one of the most profoundly self-serving and wrongheaded statements ever to grace the pages of a legacy industry's website. There's a ton to unpack here, so let's get right to it.

Scott Turow's statement is presumably issued on behalf of the Author's Guild, although there's no indication that any author other than Scott Turow was consulted. (You may remember the Author's Guild as the cheery people whose fear of technology led them to a successful claim that e-books utilizing text-to-speech violated a never-heard-of-before "audio right", in essence stating that reading purchased e-books aloud is illegal.)

Turow's burns through a whole lot of words to arrive at three basic conclusions:

1. Apple is good.
2. Amazon is evil.
3. The future of books is brick-and-mortar.

Let's take a look:

Yesterday's report that the Justice Department may be near filing an antitrust lawsuit against five large trade book publishers and Apple is grim news for everyone who cherishes a rich literary culture.

Obviously, the emphasis is on "rich." Rarely do resellers and publishers collude to lower prices. There are many out there who believe a rich culture can be synonymous with low-priced books, music, and other media, but obviously our opinions don't matter because we haven't written and sold enough books. (No, seriously. Read the comment thread on Turow's post.) Thankfully Barry Eisler and Joe Konrath, who have worked in the business and sold plenty of books, also completely dismantle Turow's arguments, especially his abuse of the word "culture."

Shouldn't those who cherish a rich literary culture prefer books at reasonable prices which allow that rich literary culture to be read by more people? All I can get from Turow's statement is: "the public must prefer their books to be more expensive." In what world is it "grim news" that our "rich literary culture" should be getting cheaper?

We have no way of knowing whether publishers colluded in adopting the agency model for e-book pricing. We do know that collusion wasn't necessary: given the chance, any rational publisher would have leapt at Apple's offer and clung to it like a life raft. Amazon was using e-book discounting to destroy bookselling, making it uneconomic for physical bookstores to keep their doors open.

You might have no way of "knowing," but the conclusions drawn by the DOJ don't look too pretty. Secondly, if "collusion wasn't necessary," then why do we have the appearance of collusion? Did the publishers not have anything better to do with their downtime than push prices around, mainly in an upward direction? Point the third: I thought it was Amazon who used deep discounts on physical books to kill off physical bookstores like Borders, and Barnes and Noble, who in turn killed off independent bookstores, or so the narrative goes. Now all of a sudden it's re-killing off physical bookstores with digital goods?

Just before Amazon introduced the Kindle, it convinced major publishers to break old practices and release books in digital form at the same time they released them as hardcovers.

Because windowing is stupid. Especially in a digital world.

Then Amazon dropped its bombshell: as it announced the launch of the Kindle, publishers learned that Amazon would be selling countless frontlist e-books at a loss... Amazon's predatory pricing would shield it from e-book competitors that lacked Amazon's deep pockets.

Selling something as a loss-leader isn't new, it isn't "predatory", and it certainly isn't exclusive to Amazon. Retailers have been doing this for a long as retail has existed. It's no different than the local grocery store selling ultra-cheap cases of soda during the summer, in the hopes that you'll stock up on hamburgers, hot dogs, buns, chips, beer, etc. while you're there. Amazon selling e-books at a loss was a way to entice customers to purchase a fully-marked-up Kindle.

Critically, it also undermined the hardcover market that brick-and-mortar stores depend on. It was as if Netflix announced that it would stream new movies the same weekend they opened in theaters.

If your business is dependent on a product whose popularity has taken a nosedive over the past few years, perhaps it's time to rethink your product line rather than blame the market leader's foresight. And since when is it Amazon's job to prop up brick-and-mortar stores?

Amazon quickly captured the e-book market as well, bringing customers into its proprietary device-and-format walled garden (Sony, the prior e-book device leader, uses the open ePub format).

Oh, for the love of... Really? You hail Apple as the savior of the sinking USS Publishing Industry, and you somehow think you can still bash someone else's "walled garden" and "proprietary device-and-format?" Isn't it worth pointing out that one of the reasons Amazon has a closed, proprietary device-and-format is because the publishers demanded a locked up system for fear of "piracy"?

Two years after it introduced the Kindle, Amazon continued to take losses on a deep list of e-book titles, undercutting hardcover sales of the most popular frontlist titles at its brick and mortar competitors. Those losses paid huge dividends. By the end of 2009, Amazon held an estimated 90% of the rapidly growing e-book market.

Well, looks like you should have gotten in on the ground floor, rather than ruefully envying a market that you seemed to want no part of.

Enter Steve Jobs. Two years ago January, one month after B&N shipped its first Nook, Jobs introduced Apple's iPad, with its proven iTunes-and-apps agency model for digital content. Five of the largest publishers jumped on with Apple's model, even though it meant those publishers would make less money on every e-book they sold.

Enter Steve Jobs, creator of walled gardens and proprietary devices and formats. And look, the publishers jumped right in even though they were giving up a bigger chunk to the walled gardener. Wait. What are we arguing about? Oh, yeah. Amazon being more evil than price-fixing publishers. Got it.

Publishers had no real choice: it was seize the agency model or watch Amazon's discounting destroy their physical distribution chain. That's why we publicly backed Macmillan when Amazon tried to use its online print book dominance to enforce its preferred e-book sales terms, even though Apple's agency model also meant lower royalties for authors.

I'm sorry. You lost me, Turow. You want to discuss e-book pricing and yet we keep finding ourselves wandering the musty aisles of brick-and-mortar. And I'm sure your lower-tier guild members are thankful to you for ensuring that they receive less money in your preferred walled garden, while simultaneously sabotaging their future sales by using inflated e-book pricing to protect hardcover margins.

Our concern about bookstores isn't rooted in sentiment: bookstores are critical to modern bookselling. Marketing studies consistently show that readers are far more adventurous in their choice of books when in a bookstore than when shopping online. In bookstores, readers are open to trying new genres and new authors: it's by far the best way for new works to be discovered.

No. Your concern is rooted in unsustainable profit margins. And would it kill you to link to these "marketing studies" that "consistently" back up your rose-colored vision of bookstores as far as the eye can see?

Publishing shouldn't have to choose between bricks and clicks.

It rhymes! And it's a false dichotomy! Publishing doesn't have to choose between those options. It can still have both. What it can't have is a return to the days of pre-digital book sales and the lush markups of first-run hardcovers. If you're looking to increase sales, it helps if you don't price yourself out of the market, via "collusion" or "agency pricing" or just flat-out refusing to align your e-book prices with reality.

A robust book marketplace demands both bookstore showrooms to properly display new titles and online distribution for the convenience of customers.

Does it? If the marketplace you have now (you know, the one that seems light on bricks and/or mortar) isn't a result of "demand," than what is it? When you say "robust market", what you're really saying is "a market that favors major publishers". It has nothing to do with the actual robust market we have today, with millions of titles and hundreds of options for both customers and writers.

Apple thrives on this very model: a strong retail presence to display its high-touch products coupled with vigorous online distribution. While bookstores close, Apple has been busy opening more than 300 stores.

So... if Amazon just opened a few retail outlets to sell its Kindle and deeply-discounted e-books, everything would be cool? Is that it? The retail world needs more brick-and-mortar foisted upon it simply because The Prices Are Too Damn Low?

Like rock bands from the pre-Napster era, established authors can still draw a crowd, if not to a stadium, at least to a virtual shopping cart.

And this week's winner of the Godwin Achievement Award (Content Industries Edition) is Scott Turow! Between this and the gratuitious Netflix reference (the killer of brick-and-mortar movie rentals), Turow is only one dodgy metaphor away from sweeping the category!

For new authors, however, a difficult profession is poised to become much more difficult. The high royalties of direct publishing, for most, are more than offset by drastically smaller markets. And publishers won't risk capital where there's no reasonable prospect for reward. They will necessarily focus their capital on what works in an online environment: familiar works by familiar authors.

Yeahyeahyeah. This argument. "Now things will suck for the lower tier of creators because no one will know or care that they've made anything, least of all those in the business of curating and selling creative content. Woe is everybody, especially those that find themselves handcuffed to a disinterested publisher who won't promote their latest and won't allow them access to their own back catalog." This thing that you think only works in an "online environment," Scott? "Familar works by familiar authors?" That's the same thing that the major publishers have been doing for years. This isn't an unfortunate side effect of the digital era. Mainstream publishers push mainstream offerings.

The indies and the self-published are where the new, exciting things will happen. And they'll do it all without your precious walled-garden-of-choice, the one with the letter "i" in front of everything, crafted entirely out of brick, mortar and windows. They'll do it on their own. Or they'll find a few like-minded writers and start their own publishing house with strippers and blackjack! And they won't need your "protection" or "author's guild" or lousy pricing or ridiculous windows to do it. Hell, some of them might even find a way to rake in hundreds of thousands of dollars while never pricing anything above a "predatory" $2.99. Weird, I know. But these things do happen. And they happen without the "power" of the major publishing houses behind them.

Any final words, Scott?

Let's hope the reports are wrong, or that the Justice Department reconsiders. The irony bites hard: our government may be on the verge of killing real competition in order to save the appearance of competition.

This would be tragic for all of us who value books, and the culture they support.

I can't even parse that sentence. Are you implying that price fixing is "real competition?" Or are you saying that windows, e-books at hardcover prices and walled gardens are the "real competition" and any entity working outside those self-imposed confines is only offering the "appearance of competition?" Or does "real competition" only include those that are looking to see how high they can price their offerings? And anyone who fails to price accordingly should be investigated for "predatory pricing." Is that about the size of it?

Let me FTFY:

That would be tragic for THOSE OF US who OVERVALUE our LEGACY, CULTURE BE DAMNED.

Valuing something doesn't mean paying top dollar for it. Does the person who owns 30 hardback books purchased at full retail respect culture more than the person who has 30 lower-priced e-books on their reader? If you believe that, you've got to let it go. Trying to convince the rest of the world that the only way to "value" culture is to pay top-dollar isn't going dispel that aura of entitlement that seems to surround every legacy industry.

Everyone values books and supports culture in their own way. What you want, Scott, is control over all of it. You want to be able to set the prices, timetable and delivery system. Unfortunately, you no longer have that option. Whether or not the DOJ finds evidence of collusion is largely unimportant in the overall scheme of things. If it does, prices will fall to market levels faster and windowed releases will become rarities. Even if the DOJ clears Apple and the publishing houses of any wrongdoing, prices will fall and windowed releases will become rarities. It's already happening. The future belongs to other people and businesses who move faster, respond to change quicker and are free of the fears that have held legacy industries back. This "statement" of yours is nothing more than the bitter noise of someone waist deep in water, cursing the incoming tide.

Filed Under: antitrust, authors, brick and mortar, ebooks, price fixing, scott turow
Companies: amazon, apple, authors guild

Authors Guild Threatens Amazon For Daring To Allow Library Lending Of Ebooks

from the how-out-of-touch-are-they dept

Ah, the Authors Guild. I don't think there's any group out there that has done more to hold back authors and important innovations that those authors need. Any new technology or innovation that comes along, the Authors Guild reflexively freaks out about it. Full text search to help you find books you might want to buy? Not allowed. Letting ebook readers use crappy text-to-speech to read aloud? The Authors Guild makes up a mythical "audio right," and threatens to sue. Then, of course, this is the same Authors Guild who is suing Google for scanning books and suing five universities for making it easier for students to access orphaned works.

So I guess it should come as no surprise that the group is now freaking out about Amazon's extremely limited "lending library" feature for ebooks. The service lets Kindle owners "borrow" one book a month for free. To appease potentially angry authors and publishers, Amazon made it clear that this doesn't actually impact revenue to publishers.

The "vast majority" are there following an agreement with the publishers to include the books for a fixed fee, while "in some cases", Amazon said it was purchasing the title under standard wholesale terms each time it is borrowed, "as a no-risk trial to demonstrate to publishers the incremental growth and revenue opportunity that this new service presents".

The Authors Guild's response is to continue to portray itself as out of touch and clueless on important innovations. It suggested that none of the books in the "lending library" are there legitimately. And it doesn't care that Amazon still pays when the books are borrowed. Because the Authors Guild's out of touch views also seem to include a scorched earth provision, where any new innovation they don't like must be destroyed if it ever so slightly changes the way people enjoy books.

Filed Under: ebooks, lending
Companies: amazon, authors guild

Unfortunate: Novelist Joins Lawsuit Against Libraries; Would Apparently Prefer His Book Rot In Obscurity

from the short-sighted dept

After the Authors Guild decided to prove that it's really against education by suing University Libraries, it also began a disappointing game of "gotcha". Specifically, the Guild found J.R. Salamanca, an author who the HathiTrust had been unable to find. The HathiTrust had listed a novel by Salamanca in its list of potential orphan works. The list actually worked as intended -- providing time for any such authors to identify themselves and to stop the orphaned work from becoming available as a scanned work.

Still, this made HathiTrust look bad, and it put the project on hold. The best response, though, was from Duke University's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to Salamanca urging him not to join the lawsuit:

It is not a comfortable position to be a pawn in a game of “gotcha,” especially when it involves litigation. What I want to say to you is the same thing I say to faculty authors at the institution where I work: “Consider carefully where your own best interests lie, and manage your copyright to serve those interests.”

[....]

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies. We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity. So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work. Amazon.com shows only two used copies available for sale. In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage. It has not left the facility once since then, and our system shows no circulations in the prior decade, either. One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard. They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition. The Authors Guild simply does not have the ability to create a new market for your book. Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust. Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books. Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

It appears that the rhetoric from the Authors Guild won out, and J.R. Salamanca has gone in the other direction, joining the lawsuit against the universities and the HathiTrust. What a sad legacy Salamanca is adding to his career. Rather than embracing greater access to his obscure and out of print works, he's chosen to attack learning institutions who sought to make his works more accessible. As a professor himself, he ought to be ashamed.

Filed Under: copyright, j.r. salamanca, libraries, orphan works
Companies: authors guild, hathitrust

Rather Than Fixing The Problem Of Orphaned Works, The Authors Guild Wants To Play 'Gotcha'

from the you're-not-helping dept

With the Authors Guild's recent move to sue a bunch of university libraries for daring to make certain works digitally available to students as "orphaned works," the latest move by the guild is to engage in a massive game of "gotcha." It started by going through the list of books that were proposed as orphaned works -- and finding one of the authors, followed by an effort that potentially found a few more.

There's no doubt that, as James Grimmelman pointed out, this makes the HathiTrust effort look bad. This was their first effort to show how an orphan works program might work, and the fact that their process was shown to be less-than-perfect (especially their "first" showcase effort) is definitely going to set back any orphan works project in the future -- because any time such an effort is brought up, people will point to this example.

Of course, others might reasonably argue that the system worked. After all, none of these books had been released digitally yet. The process involved the HathiTrust first trying to track down the authors, then the authors/works being put in a public list, which could be scrutinized by the public to see if any of them could show that the works weren't orphans. And that's exactly what happened. Even if you could have hoped that the original investigation was a bit better, it's hard to argue that the system didn't work here. It did.

Either way, the University of Michigan did exactly what it had to do from a PR standpoint, and suspended the program until it can refine the process to make it more effective in only releasing truly orphaned works.

However, the bigger issue to me is just how gleeful the Authors Guild seems to be that it's sticking it to universities and their libraries. The Authors Guild should be supporting the efforts of these libraries to legitimately make otherwise unavailable works available again. The Authors Guild should be partnering with these libraries to make sure the works truly are orphaned. Instead, they're jumping up and down and gloating over the fact that such works won't be accessible any more. It's really quite disgusting.

I think the best response to all of this came from Duke's Scholarly Communications Officer, Kevin Smith, who wrote an open letter to J.R. Salamanca, who was the first name on the list who was "found" by the Authors Guild, asking him to recognize that the libraries are not his enemy, as the Authors Guild is trying to claim:

I am sure I do not have to tell you that libraries, including those that intend to participate in the Hathi Orphan Works project, are not your enemies.  We are in the business of helping authors find readers, which hardly seems like it should be an objectionable activity.  So let’s think for a minute about The Lost Country and what might be best for it and for you.

The sad fact is that The Lost Country has become a pretty obscure work.  Amazon.com shows only two used copies available for sale.  In the Duke Libraries, the last transaction record we have for your novel is in 2004, when our copy was sent to high-density storage.  It has not left the facility once since then, and our system shows no circulations in the prior decade, either.   One of the famous “laws” of librarianship is that every book should have its readers, and the current system, I am afraid, is failing to connect your book to new readers.

It has to be said that the Authors Guild is not going to help you in this regard.  They are not going to publish a new edition of The Lost Country for you, nor will they pay you any royalties on the out-of-print edition.  The Authors Guild simply does not have the ability to create a new market for your book.  Even if they were to succeed in a grand strategy to impose a licensing scheme for orphan works in general, there is no reason to believe that you would profit from it. With such an obscure work, potential users who had to pay a fee would probably just skip the planned use.

Where you can find help for this problem is with the HathiTrust.  Their goal, and the goal of the libraries that plan to participate in the orphan works project, is to make it easier for readers to find works like your novel, which might otherwise languish on shelves or in large warehouses of books.  Digital access to low-use titles through our catalogs will encourage users to discover resources, for study and for entertainment, that they might not have bothered with before.

It seems unlikely that the Authors Guild will understand this. But watching Scott Turow (whose books I was a fan of until all this began) and the other top brass at the Authors Guild act this way, it's hard not to be flat-out disgusted by the way the group is so gleeful about locking up knowledge.

Filed Under: books, copyright, orphan works
Companies: authors guild, hathitrust

Why Does The Authors Guild Hate Education So Much? Sues Five Universities For Providing Access To Orphan Works

from the shame-on-authors dept

It appears that Scott Turow is really trying to cement in place the reputation of the Authors Guild as a luddite, anti-education, anti-learning organization. What a shame. A decade ago, the Authors Guild stunningly told its authors not to link to Amazon, because Amazon dared to also show used books alongside new ones. It also freaked out when Amazon allowed people to search full text of books. Over the intervening decade, the Authors Guild has consistently come out against progress, such as when it freaked out about the text-to-speech feature on the Kindle, bizarrely claiming that this feature was infringing (it's not).

For many years, the Authors Guild has been involved in a legal dispute with Google over the Google Books scanning project. And while the two sides came to a highly questionable settlement that was thankfully rejected by the court, it appears that the Authors Guild is doubling down on a new lawsuit -- this time suing five universities for daring to try to provide access to digital scans of orphan works -- those works for which no copyright holder can be identified.

You may have heard a few months ago that the University of Michigan's libraries, sick of waiting for Congress to get its act in order and deal with the orphan works problem, said it was just going to start making such works available. Last month, some other universities joined the University of Michigan to create a consortium of universities who decided to provide access to scanned orphan works. These libraries had to know they were daring the Authors Guild to sue, and now it's happened.

The University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University, along with the overall consortium group, called the HathiTrust, has been sued. Oddly, there are a few other universities who stated they were going to take part in this effort -- including the University of Florida, Duke, Emory and Johns Hopkins. I'm not sure how they avoided being lumped in to the lawsuit.

This is related to the Google book scanning project, because these university libraries shared their collections with Google to scan, and it's just that now they've decided that they're going to make orphan works available. The universities are claiming that fair use lets them share these works. The Authors Guild, obviously, disagrees. On top of that, the universities and the HathiTrust makes it pretty clear that they're bending over backwards to make sure that these works truly are orphan works where copyright holders cannot be found:

The story starts with Google’s scanning agreements with the libraries: each time Google scans a book, it returns both the physical book and a digital copy to the library that gave it the book. The libraries then gave their scans to the HathiTrust, which functions like a digital version of a shared off-site storage warehouse. HathiTrust makes multiple copies of each file, storing versions on hard drives and tape backups at both Michigan and Indiana. It offers the public bibliographic information about the books, and provides a full-text search engine. Unlike Google Books, however, which shows “snippets” from the books as search results, HathiTrust will only tell users the page numbers where the search terms occur. If a book is in the public domain, HathiTrust turns on full view, letting users read it online. (If you’re affiliated with one the member institutions, you can also download the book as a PDF.)

This spring, HathiTrust announced the “Orphan Works Project,” which aimed to investigate the rights status of the books still in copyright. It would investigate the author and publisher information available about the book; if they could not be located and the book was unavailable, it would be flagged as a possible orphan and put on a list of candidates. If at any time a copyright owner is identified and located (e.g. because they step forward), the book is removed from the list.

In other words, the only way a book gets displayed through this system is if no copyright holder is found after a fairly extensive process. And if the copyright holder ever shows up, the work is immediately removed. All of this makes me wonder if the Authors Guild can really prove it has standing in this case. If the actual copyright holders cannot be identified, how can the Authors Guild claim standing over these works?

Either way, this is yet another in this long line of disputes in which the Authors Guild is coming out on the wrong side. It's not helping authors, it's doing the exact opposite, by acting like a massive luddite, attacking any form of innovation or any system that encourages the reading of books and the sharing of knowledge. Shame on the Authors Guild, who seems to only be living up to the reputation of guilds from the Middle Ages, which were focused on economically-suicidal protectionism, rather than innovation.

Filed Under: books, copyright, education, libraries, orphan works, scanning
Companies: authors guild

Court Rejects Google Book Scanning Settlement With The Authors Guild

from the back-to-square-one dept

Well, well, well. For many years there's been quite the back and forth about Google's book scanning project. As you may recall, years back, Google started scanning various books to create what was effectively a giant online card catalog, making it much easier to research and find useful books. Contrary to what some have claimed, it did not make it easy to read entire books online. In fact, publishers began realizing that Google's book search helped sales by helping people find their books, and directing them to where those books could be bought. But, still, the rather backwards looking Authors Guild couldn't resist and sued. It seemed like Google had an incredibly strong fair use argument, especially if you take into account the original intent and purpose of copyright law, being a statute to increase the spread of knowledge.

Unfortunately, after a few years of fighting back and forth, Google caved, with a "settlement" that was hardly a "settlement" at all, but rather a way for Google to effectively lock up the online book scanning business all to itself. I thought this was disappointing for any number of reasons, and many people agreed, leading Google and the Authors Guild to scrap the original settlement for a new one that was only slightly more reasonable. It still seemed more like a business deal, rather than a settlement, and still ignored the key fair use questions raised by the lawsuit.

Today, however, a district court judge has rejected the settlement. The full ruling by Judge Danny Chin is embedded below, but the short version is that the settlement was rejected because, as with the original settlement, this was more of a business deal in which Google benefits at the expense of competitors. That part, I'm fine with. Where I'm more troubled is that Chin claims that this settlement "rewards" Google "for engaging in wholesale copying of copyrighted works without permission."

The ruling does acknowledge the many, many benefits of Google's book scanning project:

The benefits of Google's book project are many. Books will become more accessible. Libraries, schools, researchers, and disadvantaged populations will gain access to far more books. Digitization will facilitate the conversion of books to Braille and audio formats, increasing access for individuals with disabilities. Authors and publishers will benefit as well, as new audiences will be generated and new sources of income created. Older books -- particularly out-of-print books, many of which are falling apart buried in library stacks -- will be preserved and given new life.

I agree with the decision to dump the settlement. It seemed clear that the settlement goes way beyond the issues in the case to create a separate right that perhaps the Authors Guild had no right to negotiate over. And that seems to be the key concern by the judge. The judge suggests, if anything, that Congress is the proper party to step in here and define the rights over these kinds of books.

The judge does acknowledge the fair use argument, but really only to point out that it was the crux of the lawsuit, but is more or less ignored by the settlement. He does seem to suggest that the fair use defense wouldn't fly here, but doesn't go into any thorough analysis. I'm a bit disappointed by that, because I still think that the fair use claim here was strong, and claiming that this was clear infringement is misleading and will be a problem down the road. In fact, the analysis on the copyright issues reaches somewhat troubling depths, suggesting that it found claims from authors of moral rights to their works -- which are not recognized in the US -- persuasive, in arguing that the scanning was infringement.

In the end, rejecting the settlement was probably the right move, but I'm troubled by the suggestion that the scanning itself was clearly infringement, and the skipping over of fair use as an important issue here, compounded by the acceptance of moral claims from authors that they "don't want" someone digitizing "their" works.

Filed Under: book scanning, copyright, fair use, settlement
Companies: authors guild, google

Would Shakespeare Have Survived Today's Copyright Laws?

from the seems-like-a-better-question dept

Last year, when author Scott Turow (whose books I actually liked very much) took over as head of the Authors Guild, we noted that his obsession with "piracy" was misplaced, and probably not in the best interests of the authors he represented. We also posted a compelling response to Turow. Rather than take the time to understand the arguments and the data on this subject, it appears that Turow and the Authors Guild are doubling down on the "but... but... piracy!" argument, along with a good heaping of "the government must do something!"

Turow, along with Authors Guild executive director Paul Aiken and Authors Guild board member (and apparent Shakespeare expert) James Shapiro, have an op-ed piece in the NY Times that a whole bunch of you have been sending in, in which they assert that Shakespeare might not have been able to survive the web era, because of all of this "piracy." The argument is quite a bit stretched, but see if you can follow me: because playwrights had physical scarcity, in that they could keep people out of the playhouses unless people paid to enter, it allowed playwrighting to flourish. They call this a "cultural paywall." Then there's some sort of bizarre leap about how copyright is really the same thing. It's not. And, then it leaps to something about how stricter copyright laws are, ipso facto, better. The evidence for this? Shhhh, don't bother the Authors Guild bosses with logic! And, of course, the inevitable punchline is the idea that Shakespeare wouldn't have survived in this online era with all this piracy and stuff.

Of course, it's difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare's works are copies (sometimes directly) of earlier works. Sometimes they're derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he'd be able to produce any of his classic works, since they'd all be tied up in lawsuits over copyright infringement.

Furthermore, the reason Shakespeare was able to make money by selling tickets was because seats in a theater are a real scarcity, and selling real -- not artificial -- scarcities is still a damn good business model today. Shakespeare could still make a killing on Broadway. Or he could go into the movie business and sell tickets to seats in theaters. There are plenty of real scarcities he could focus on. Jumping from real scarcities to artificial scarcities such as copyright, suggests that Turow and the others at the Authors Guild still don't even quite understand what they're arguing for.

Separately, it's disheartening to see Turow -- who really should be seeking out actual evidence -- dismiss anyone who has that evidence by writing them off as "a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress." First of all, it's not just "a handful," and these folks aren't just coming up with "counterintuitive theories," they're often looking at what the actual data says -- something Turow apparently refuses to do.

Paul Friedman, who isn't just a law professor, but also has a long history practicing law, has a nice response to Turow in which he cites the always entertaining Judge Alex Kozinski in warning folks of the dangers of overly fetishizing stronger intellectual property laws as something that must be good. What makes it even more amusing is that Kozinski uses Turow's most famous book to make his point.

That said, a growing percentage of the population is realizing that this obsession with "stronger copyrights must be good" makes less and less sense. And as the Authors Guild continues to have out-of-touch, fact-challenged people lead it, it's only going to serve to drive younger authors away from the Guild. Smart authors today recognize the maxim that obscurity is a much bigger threat than piracy, and many have come to figure out that piracy is nothing to fear if you have a smart business model.

If Turow and the Authors Guild really wanted to help authors, they'd focus on helping them understand new business models, rather than supporting ever more draconian laws that will do nothing to help and plenty to hurt.

Filed Under: copyright, internet, james shapiro, paul aiken, paywalls, scott turow, shakespeare
Companies: authors guild

Why Hasn't The Authors Guild Freaked Out About iPad Ebook Text-to-Speech?

from the inquiring-minds-want-to-know dept

Back in March, we pointed out how odd it was that the Authors Guild hadn't freaked out about the text-to-speech capabilities of the iPad, which would allow for ebooks to be read aloud. Of course, this was the same feature on the Kindle which caused the Authors Guild to freak out (with absolutely no legal basis), leading Amazon to make that feature optional.

It appears others are noticing this strange silence on the part of the Authors Guild. David Pogue, over at the NY Times wonders if the Authors Guild just wasn't paying attention:

This is exactly the feature that debuted in the Amazon Kindle and was then removed when publishers screamed bloody murder. But somehow, so far, Apple has gotten away with it, maybe because nobody's even realized this feature is in there.

Filed Under: copyright, ebooks, ipad, text to speech
Companies: amazon, apple, authors guild

An Open Letter To Scott Turow About Not Freaking Out About Book 'Piracy'

from the you're-doing-it-wrong dept

We recently noted that author Scott Turow had been elected as President of the Authors Guild, where his initial focus seemed to be all about the evils of file sharing. Thankfully, some are trying to talk some sense into Turow. Michael Scott points us to a fantastic open letter to Turow, from Brian O'Leary, about why his kneejerk reaction isn't helping, and that he should be focused on understanding unauthorized file sharing, and what impacts it has (both good and bad), before jumping to the conclusion that it's evil and must be stopped at all costs. Here's just an excerpt, though you should read the whole thing:

First, though: I am not a pirate.  I value intellectual property and believe its prudent defense can return value to its creators.  But I've also come to believe, in this increasingly digital landscape, that the greater threat to many authors is obscurity, not piracy.

....

That's why we started studying the impact of piracy on paid sales almost two years ago.  On an admittedly limited sample... we've found an apparent correlation between piracy and subsequent growth in paid sales.

Now, you recently told GalleyCat's Jason Boog that "...the larger problem for us is the pirating of books".  I ask, simply, "How do you know?"

There are no reliable studies of the impact of piracy in the book business.  Because our sample set is limited, I include our own work to date in that bucket.  The studies that are cited most often are based on sampling techniques that try to track the instance of piracy, then apply an assumed number for "substitution rates" (lost sales).

The Government Accounting Office recently "assessed the assessments" of digital piracy and found them all lacking.  That's not the final word, but it's an indication that conclusions drawn on the limited data available are premature, at least.

In talking with GalleyCat, you went on to say that "(piracy) has killed large parts of the music industry." But, the music industry is not dead, and there are studies that suggest that the more likely shift in buying patterns occurred when vinyl owners finished replacing treasured albums with CDs.

As replacement sales declined, purchase patterns also shifted from whole albums to individual songs.  This was a trend that the music industry actively resisted, in the end fostering the piracy it wanted to prevent.  The lesson here could be more readily distilled as: "Don't take actions (like delaying the release of e-books) that frustrate consumer demand."

There's much more in the full letter, and it's well worth the read. O'Leary suggests not that Turow ignores the issue, but that he takes a more open-minded, data- and evidence-driven approach to responding to this market issue. That is, don't immediately assume the best response is "stopping" unauthorized copies, but collect some data to figure out how to best respond to the market situation. Hopefully Turow will actually pay attention and maybe rethink his position.

Filed Under: books, ebooks, scott turow
Companies: authors guild

Authors Guild Worried About iPad Ebook File Sharing... But Focused On The Wrong Thing

from the people-are-reading! dept

A little over a year ago, we discussed the idea that the ebook world needed more "piracy," noting that the locked down nature of the Kindle actually limited a large part of what might help kick off the real ebook world. History has shown time and time again that so-called "piracy" is often a leading indicator of innovation in areas that people are interested in. But, unauthorized sharing in ebooks was still somewhat limited. Of course, some things have changed over the past year. There was the lawsuit against Scribd (which, last I heard, failed to get class action status) and then sudden totally unsubstantiated articles warning about unauthorized ebook file sharing.

Now, the latest, is the fear that with the success of the iPad in the market that it will become a popular platform for unauthorized sharing of ebooks. Apparently, author Scott Turow has recently taken over the Authors Guild, and has decided that ebook "piracy" is a "big problem" that has to be the focus. Perhaps next time the Authors Guild wants to show itself to be forward-looking and able to change with the times, it shouldn't put a 60+ year old lawyer in charge. Just a suggestion... Rather than saying that unauthorized file sharing is such a big problem, perhaps Turow should take a look at the music industry more closely. He seems to only be superficially aware of what's happening in that industry. Instead of recognizing that the industry wasted over a decade fighting what fans wanted, he seems to think that he can magically fight what every other industry has failed to fight. That doesn't seem like a strategy that has a high likelihood of success.

Perhaps, instead of automatically blaming those involved in file sharing, Turow should take some time to understand why it's happening, and look at those who have figured out interesting and unique models to provide more value for consumers who want it, rather than just focusing on the impossible task of trying to punish those whose actions the Authors Guild doesn't like.

Filed Under: ebooks, file sharing, ipad, scott turow
Companies: authors guild