The Prospects for Copyright in a Bookless World
January 1, 1970(Delivered April 4, 2006, at the Columbia University Law School as the nineteenth annual Horace S. Manges Lecture.)
I want to thank you for inviting me to deliver the nineteenth Manges lecture. The assignment is both flattering and daunting. As I looked over the list of the accomplished men and women who have stood at this lecturn in the past, I counted six “The Honorables,” eight professors, and one doctor. Only three of the past lecturers had no honorifics preceding their names, presumably civilians like myself. But while judges interpret the law we are here to discuss tonight, and professors explain its many nuances in far more subtlety than I can, no one is more affected by copyright than writers. And I am a writer.
I love what I do. And to tell the truth, it is all I really know. I am finishing my eleventh book and it has taken me five years. So as you see I have a stake in the laws that protect my work from theft and give me an ongoing period of ownership. What lies ahead for those laws that you and I care about so deeply? That’s what I want to talk about tonight – the possibilities for copyright that exist in a future that technology is remaking by the hour. It is a topic I approach with the sunniness of a preternatural optimist, tempered with a dose of hackle-raising dread.
We can all look at that future and surmise that copyright – already under both de facto and practical attack by a broad and loose coalition of Internet users, misinformed technophiles, content snatchers – excuse me, I meant to say thieves – and Stanford law professors – will continue to suffer the slings and arrows of people for whom ease of assembly is a more important concept than paying authors and other artists for their work. These people often seem as mean-spirited as they are misinformed. Mean-spirited specifically about what it is that motivates authors to protect their property. Copyright, they suggest, serves to protect the interests of the rich and selfish. The old Robin Hood excuse. It is very romantic. Very appealing. It allows you to download songs for free, and do things like commit insurance fraud because the companies charge too much and they’ve got plenty of money anyway. I know a lot of authors. Some of them drive Bentleys. Most of them, however, take the subway. I don’t know any who are selfish, but I guess there are some. I’m not one of the rich ones. Most of us work for a pittance, an average of less than $10,000 a year, and support our writing by doing other work. My friend Gay Talese writes in his forthcoming memoir, A Writer’s Life, that if he were paid for the time he spent in research he’d receive not dollars, but pennies on the hour. Plus, we’re easily distracted, so we spend a lot of time doing other things, like advocating on behalf of copyright and making speeches. Nevertheless, criticism of copyright will continue and probably intensify. But what I want to suggest to you is that the same rush to digitization that creates copyright’s greatest challenge and motivates its critics, contains at the same time the ingredients for a Golden Age of Copyright.
Let us begin with a prospect that I find horrifying. Books as we know them are not long for this world.
During my four years as president of the Authors Guild, which ended a little over a month ago, I thought we authors could be comforted by some observable facts about the book itself. It is a piece of technology that, had it not been around since Gutenberg and instead had been invented only yesterday, would be hailed as almost perfect. Think of it. This centuries-old technology – ink on paper bound by glue and stitching – it’s durable, portable, reasonably weather-resistant. You can take it to the beach without worrying what blowing sand will do to it. You can highlight it, underline important passages, and make notes in the margins. If you lack a bookmark, you can dogear a page. It never needs its batteries recharged. It is, in terms the digerati can respect, an excellent user interface. Plus, it looks good in the home. Full bookshelves convey strong messages about education, taste, and affluence. Unless, of course, all you have is the full line of “Dummies” titles.
It is specifically because the book is its own interface that authors and publishers have largely avoided the levels of piracy the music and movie industries have suffered. The need of those industries’ consumers for listening and viewing devices to gain access to content, and the departure of that content from the substantial realm to the digital – from records and videotapes to CDs and DVDs and now to files that can be freely exchanged among devices – speaks to the future of publishing – and to copyright in the context of publishing.
I know, from listening carefully to the opinions expressed by members of the board of the Authors Guild, and from talking with many, many authors, that we want to avoid at all costs the kinds of heavy-handed enforcement our colleagues in music and movies have found it necessary to resort to. What a debacle, suing their own fans. We in the Authors Guild got some idea of the potential reaction when we protested Amazon.com’s sale of used books in direct competition with new books on its web site. Our argument that it took money from authors and publishers was met with an outcry – engineered in part by Amazon founder Jeff Bezos – that we were anti-reader because we didn’t want our readers to have inexpensive books.
That was a lesson in public relations. An economic argument was thrown up at us as well. This came from one of our own board members, Sylvia Nasar, who is the Knight Professor of Business Journalism here at Columbia. She argued – in an OpEd page piece in The New York Times that she forgot to tell us she was writing – that it is better for an author to have more books in circulation no matter whether they pay royalties or not. That the coin of the realm is exposure.
The value of exposure versus strict copyright enforcement is cited in several contexts. Twelve years ago, in what is probably the most widely circulated article ever to send the techies off to storm the barricades of copyright, John Perry Barlow, who wrote lyrics for the Grateful Dead, argued that allowing fans to tape the band’s concerts, while it may have reduced the sales of their recorded music, made their concerts enormously popular. They were always sell-outs, and therefore they kept making money. Of course, it’s hard to compare an author to a touring rock band. I can’t think of a single author who could spur the sales of tie-dyed T-shirts. And not that many can keep the turnstiles spinning long enough to fill a lecture hall with paid admissions, let alone a concert auditorium. One who could was Charles Dickens, who used a lecture tour in the United States to argue for the enforcement of copyright at a time when American publishers routinely ripped off the works of English authors.
Dickens and other touring authors like Mark Twain notwithstanding, income from paid performances simply isn’t available to most authors. But who cares, right? Because that’s an admission that would go against the argument that loss leaders can work across the board in a copyright context.
Barlow used some of his Grateful Dead income to found, with others, the Electronic Frontier Foundation. The EFF is among the entities that suggest, among other things, that the power of the Internet demands a new view of copyright, and that the value of the exposure it provides is one of the factors that should make authors abandon their insistence on their rights. Last fall, not long after the Authors Guild sued Google for copyright infringement in its library scanning program, an author approached me at a cocktail party. His name is Warren Adler, and he wrote The War of the Roses, among many other excellent novels. What you’re doing is all wrong, he said. By scanning our books, making them searchable online, and providing links to bookstores, Google was letting people find them and perhaps buy them. Objecting to that kind of exposure was like objecting to sunlight on flowers. He was so committed to this point of view that he had had all of his books digitized and made available online.
David Drummond, Google’s general counsel and vice president for corporate development, makes a similar point. Information may not want to be free, he says, but it does want to be discovered. Leaving aside its claim that fair use under the copyright law entitles it to scan and make available “snippets” from protected work, Google’s argument echoes Adler’s, that books unexposed to searches on the Internet will wither and die.
I agree with both of them. Most authors do. We want all the exposure we can get. The point of the Authors Guild’s lawsuit against Google was not to stop the project. That is the most common misconception we confronted, and that the Authors Guild confronts today. The point, I repeat, is not to stop it. The point is to share in it, as copyright intends. If Google will not share, however, the project must stop. The power to say, “No, not without my permission,” is ultimately the only way authors ever get paid.
The importance of not being invisible, of being able to be found, was just one of the arguments made against our Google suit. The libraries with which Google has contracted said that making such a great store of knowledge so instantly available is such a significant public good that authors should not stand in the way. Actually, only one of the libraries said this. That was the University of Michigan’s, where the program began. As you probably know, the others are Harvard, Stanford, and Oxford universities, and the New York Public Library. Oxford and the New York Public Library have said they will limit the scanning from their stacks to works in the public domain. I believe they respect the rights of authors, but I think they’re also being prudent. I would speculate that Google started with the Michigan library, which is allowing the scanning of its entire collection, works in copyright and out, because it alone among the Google partners is a state entity that cannot be sued for damages for giving up its copyright protected works for copying. So you have an inside job – a bank employee opening the doors and letting the safecrackers in, but that employee is immune from prosecution.
The public good. The imperatives of progress. Those are the nuts of the case made by the Lawrence Lessigs, the computer-focused media, and the swarms of copyright libertarians who talk about storming the citadels of information, running the gatekeepers through with pikes and tossing their bodies in the moat, and freeing the imprisoned bits to float through the electronic world like dust motes until they’re sucked onto somebody’s computer screen and from there sprinkled into term papers and essays and other work that may or may not credit their original creators. Otherwise, they say, the rivers of creativity will cease to flow. And they must be right. How else to account for the fact that a mere one hundred and fifty thousand books were published last year?
Look around you. You don’t have to go any further than this great university. Is there any shortage of creativity? Can it possibly be true that the wells of inspiration are so shallow that they have to be fed with the uncompensated works of creators who apparently resorted to miracles or conjury to do what they did under the rules that are now being attacked? Creators who found it possible to get and often pay for permissions that copyright required? Creators who managed under the dictates of fair use to create new and transformative works? Please.
John Perry Barlow’s piece advocating the dissolution of copyright appeared in Wired magazine in March, 1994, if you want to look it up. It was a remarkably forward-looking piece for its time. It was also completely wrong in its main argument, that the traffic of ideas freed of their old containers demanded a reassessment of copyright. Ideas, as we know, are not protected, and he somehow equated expression with physicality. “Law protected expression,” he wrote, “and with few exceptions, to express was to make physical.”
This is certainly not the case for writers. Today we mostly compose – or express – our ideas in the ephemera of zeros and ones on our computers, and their lack of physicality is abundantly clear to anyone who has lost a hard drive, as I did last year. The fact that they’re eventually converted to physical form adds value in the form of tangibility, but it doesn’t change the value the expressions had when they lacked substance. Nor does that value change when they are converted back from the substance of a book to the emphemera of the Internet, where they can be trafficked. But the notion is intriguing. Does value attach only to physical substance? The popularity of free illegal music downloads suggests that might be true. Most people who used Napster or Grokster probably wouldn’t shoplift from a music store. But if it were true, why would anybody pay for a vacation? If it’s a physical object you value and you come home without a raffia basket or a T-shirt, what’s the point?
The history of copyright began when a physical object, the book, became a commodity. The physicality, or the individual objectness, of the printed page began to break down in the 1960s, with the development and spread of commercial photocopying. If we writers had been sufficiently alert to the probability of widespread copyright violations by reproduction that vastly exceeded the boundaries of fair use – of wholesale copying for “course packs” and the like – we perhaps would be enjoying the fruits of a more muscular version of copyright enforcement than we currently enjoy in the United States. In the United Kingdom, for example, sampling of the photocopying done at school libraries and other institutions provides enough information to allow the payment of title-specific royalties. Those royalties come to the Authors Registry, operated by the Authors Guild, and American authors have received almost $4 million over the past ten years. The Scandinavian countries, along with Germany and Spain, sample more generally – along the lines of an old Nielsen rating form that tv watchers filled out in their living rooms. Photocopying royalties these countries pay go to writers’ support organizations, including the Authors Guild, and other organizations that support rightsholders including artists and photographers.
Most western European countries also pay library lending royalties. This is another logical extension of the compensation envisioned by copyright, but it has failed to gain traction in this country. It’s not because authors haven’t tried. The Authors Guild put on a vigorous lobbying campaign when the issue was hot back in the 1980s. Unfortunately, we didn’t know Jack Abramoff, and we didn’t have the big casino bucks to spread around.
Photocopying, of course, still involves making one physical object from another. Perhaps that is why there is never an outcry from copy shop patrons – who essentially download their copies from their original source – about the pennies per page they have to pay. But now it’s the stuff inside the book – its content – that’s the commodity and that commodity is completely removed from physicality in most of its permutations. And with that, the consensus on value and payment has shattered. It’s possible to imagine a future much like the distant past, in which the only people who own books are wealthy and have a lot of space. For the rest of the population e-books will provide both words and pictures.
Those of us who love books love them for many reasons, and many of those reasons have to do with books as objects – they way they feel and smell, their design, the often-brilliant art of the dust jackets. There’s the contentment of tactile progress as we turn the pages, and the progressive satisfaction of the bookmark moving through the book from front to back. These sensations are not available to e-book users, and many of us were happy that the early e-books were not embraced by readers. Part of that happiness was a result of fear. The fear of course was not of e-books per se, but of digitization and piracy and the potential that entire books into which authors had plunged, in many cases, years of their lives, would suddenly be trafficked over the Internet without compensation to publisher or author, the way songs were downloaded from Napster or swapped on Grokster. We authors deluded ourselves that the early failures of the e-book were a vote for continuing the status quo, that people were saying, “No, thank you. We like our books the old way.”
And some of us always will. But not all of the satisfactions of reading are bound up in the book itself. There’s that moment when you finish a novel or a work of history, a memoir, a romance, a book that offers life advice, spiritual guidance, or financial tips, and you sit there with it on your lap thinking about the characters, or what you’ve learned. That’s the value of the content, removed from its tactile container. It talks to you after the book is closed and put back on the shelf, and it can just as easily do that after you push the “off” switch. And the truth is that nobody has perfected the e-book yet. Nobody made it easy to read in sunlight, gave it a battery that would get you through a Tom Wolfe novel without plugging it in for recharging, made it slim and elegant and provided even a fraction of the satisfaction that came from reading a real book. Most e-books are read on Palm Pilots. It’s probably like watching Seinfeld reruns on your iPod – an experience with limited appeal. But the final chapter hasn’t been written on the e-book. Within the past couple of months I’ve seen e-book prototypes that provide a pretty good facsimile of the real experience. They still need to improve their resolution, and like any new gadget they’ll cost too much at first. But they have certain advantages. You can change the font size, for example, if you forget your reading glasses. I could see using e-books instead of carrying an extra suitcase for the hardcovers and paperbacks my wife and I always take on vacation because we think we’re going to have time to read them all.
So I think that despite the halting progress of the e-book, the day will come when it’s the rule, not the exception. There will still be real books for collectors and purists. For everybody else, bookshelves will gradually become irrelevant. Think of the entire forests we will save, to say nothing of the ink. Huge libraries the size of a city block will be unnecessary. Bookstores will shrink. Houses will come without bookshelves, or at least they’ll be filled with other quaint objects of the past, like Meissen figurines and family photographs. Carpenters will lose a portion of their skills. And what will we do with our coffee tables – actually sit around them and drink coffee?
What does any of this have to do with the prospects for copyright? The e-book is just one example of our progress, if one can call it that, to a bookless world. This deconstruction of the book, its removal from one-objectness to a stew of bits, allows the book’s contents to be constituted and reconstituted in different ways. Google’s library scanning program, which it now calls Book Search, is an obvious example of this. Google allows the books it has scanned to be searched for what it calls “snippets.” Let us call them “tidbits,” or “morsels,” because the idea is that if they are tempting enough, they may persuade the searcher to follow a link to an online bookstore to buy the book in which the morsel appears. This is the exposure that is supposed to be the trade-off for authors meekly acceding to Google’s confiscation of their content, notwithstanding that it is that content that draws searchers to Google, allows Google to sell ads, and thereby adds value to the Google franchise.
Now the argument against Google’s seeking out the authors and actually licensing the content that they’ve decided is theirs to take is that it would be a swamp, a nightmare, and any number of other metaphors for something that is difficult, but not actually impossible, to do. If Google has in its vast files an archive of which computers – which of our computers – entered which search terms, an archive that by the way is rife with potential for embarrassment and blackmail along with the terror-watch and law enforcement possibilities that has Homeland Security and the FBI all aquiver, how can it not be possible to find and license content owners? Google should be able to use its technical brilliance to find authors, license their works, and pay them for their intellectual and creative labor.
But let’s assume it is impossible to do that. Even so, there is at least one scenario under which Google – or any other search engine, for that matter, Yahoo, for example, or MSN – could offer more than the morsels they are now providing, and pay content owners in the process. This would take advantage of the deconstruction of the book in the same way that music has been commercially deconstructed to allow people to download ringtones to their cell phones for a price, or buy individual songs instead of the packages that record companies offer in CDs. Here’s what I’m talking about:
Let’s avoid making this about Google or anybody else. I like Google. I use it every day. So I don’t want to pick on them. Let’s call our search engine Mr. Search. Mr. Search would be able to accumulate a library of books in and out of copyright through contracts with libraries, as its competitor Google has done. And Mr. Search would offer the same morsels or tidbits to view. But it could go much further, because Mr. Search has a secret ingredient – permission!
Permission does miraculous things to Mr. Search. Bulks it up miraculously, overnight. Think of Mr. Search as Google’s library project on steroids. Suddenly, Mr. Search is no longer serving up mere morsels. Instead of dribbling ground balls back to the pitcher, Mr. Search is swatting towering home runs. Mr. Search now serves up pages, chapters, even entire books. Mr. Search’s power knows no limits. It is equally at ease on large campuses and small, in the libraries of big cities and remote villages. Better still, Mr. Search’s power is legal. It lies entirely within the rules. All one needs is to be a patron of a subscribing library or a student of a subscribing university and the doors to this new Library at Alexandria swing wide. Libraries already subscribe to Dialog, Lexis/Nexis, and all sorts of other databases. So do universities. The costs are part of their fee structures. Why not add the beefy, big-headed Mr. Search to the lineup?
Mr. Search is not only available to institutions. It takes the time to cater to individual needs as well. A la carte users can pay-as-they-go, or individuals could sign up for their own subscriptions. Want to print? Want to photocopy? Need a coursepack? Hanging curveballs to Mr. Search. Just pay a bit extra, as you’d expect for any high-performing slugger. A typical subscriber might pay $20 a month to view 250 pages and print fifty, but if her research and content needs were greater, she could pay more and both view and print more pages.
Where does Mr. Search get permission, where does it get the juice to swat all these home runs? I’d suggest an ASCAP-like agency to grant permission and to pay and handle tax reporting to rightsholders. We can also give this agency a name. Let’s call it LARRY, for Legal Authors Rights Receipts, with a Y added on for emphasis – Yes!
Let’s say there would be four types of sublicenses under such an arrangement. The revenues from each would be divided in some proportion between Mr. Search and the rightsholders. LARRY would apportion payment among rightsholders based on usage, information Mr. Search would have readily available.
LARRY is generous, so perhaps anyone could view a morsel for free under this arrangement. Mr. Search would charge for ads along the search paths as search engines do currently, sharing some of that revenue with rightsholders through LARRY. Therefore, the dream is realized. The wide world of books would be available for search by anyone who had access to a computer and an Internet connection, and the obligations of copyright would be fulfilled.
For the most popular books as revealed by a search history, assuming they were out of print, Mr. Search could even make them available on a print-on-demand basis.
Rightsholders would naturally have options under such an arrangement. The standard license would permit all the sublicensing I’ve described above. But they could choose to permit no uses at all, morsel views only, or permit the full range of services. They could change their minds and permit fewer or more uses, but only once a year, by informing the ASCAP-like LARRY.
This would make book content more widely available than ever before, and in a way that would reward the creators of that content. But to make sure it was not available beyond the scope intended, Mr. Search would be responsible for making the database secure against hackers, and for securing backup tapes. Mr. Search would report security breaches, and regular security audits would be performed.
Publishers, belatedly, have already begun to see the possibilities of just such deconstructions of content from their traditional containers. So have Google and the other Internet goliaths like Amazon. Searches of books that provide views of several pages have been available for some time as a promotional tool, but now for the first time both Google and a spearhead of publishers are unbundling books and trying to find new payment paradigms. Google has been signing up publishers to offer online access of entire books. Publishers control the pricing, Google takes a share, and will pay publishers from ad revenue but with reporting that will allow them to round out their royalty reports to authors. Google has described this as “the first of many new digital business models that it hopes to enable” in order to provide options for publishers to “monetize their book content” in “incremental ways” online.
Meanwhile, publishers are wondering if they actually need Google or other online booksellers for this kind of distribution. Just last week, Simon and Schuster announced that its executive in charge of electronic initiatives now headed a division called Simon and Schuster Digital. The company’s CEO was quoted as saying the division was “currently hard at work developing a digital archive and rights management system for all S&S titles. This archive will be critical to maintaining control over our intellectual property in our future electronic publishing endeavors, whatever shape they may eventually take.” Simon and Schuster was following the lead of HarperCollins, which announced its digital archive project several months ago. Random House announced an online-e-book licensing scheme last fall. Amazon.com has two such programs in the works. Even mighty Google, cutting-edge champion of the right to take without asking, has hatched its own online pay-per-view scheme.
In a perfect world, the digital rights management these new content distributions will require would flow from an open source system, available for public modification. But of course the same freedom that would allow it to be changed and new innovations written in would also allow it to be broken and restrictions written out, so it can’t work that way. Nevertheless, one hopes that open source-type innovation and digital rights management that pays creators can someday coexist.
That, in a nutshell, is the beauty of the future of copyright and why there is the potential for a Golden Age. New payment models are proliferating, and they recognize the role of content creators and rightsholders. Whether authors and publishers can find accomodation on how to divide the revenue is another story. The history of writers and publishers is filled with disagreements, but in the current environment those amount to family spats. On both sides of the editor’s desk, we agree on the need to experiment, and to create new forms for our content that match the many new ways in which it is consumed.
There are still those, of course, who disagree with strict copyright enforcement no matter what. These are the copyright libertarians I referred to earlier. To them, adequate digital rights management simply maintains the “permissions society” that they decry. They urge creators to choose to make their content available under a variety of less restrictive terms. And many creators have chosen to do so. They may have bought into the open content argument as a matter of philosophy or politics. Maybe they don’t have large stakes in their material, or perhaps they see dispersal as advertising for their concerts or lectures or book signings. Maybe they have trust funds. But most authors want and need to get paid for their work. We reject the implication that creativity is supposed to occur outside the context of money to support it. We also reject the accusation that we’re standing in the way of progress.
It is absurd to argue that the only route to progress is to bow to everything that technology allows. One of traditional copyright’s opponents has gotten a lot of mileage out of a story about a pair of North Carolina chicken farmers. These farmers had a problem. Their farm was near a military airport, and their chickens were all acackle over big, noisy, heavy bombers taking off and landing right over their heads. They were frightened, sick, and dying. The farmers had the temerity to assert the air rights over their farm on behalf of their chickens, to prevent the takeoffs and landings. The case, U.S. versus Causby, worked its way to the Supreme Court, which made a Solomonic ruling. The air space required for air travel was a commons available to all citizens, but the farmers had rights, too, essentially the common law right to the beneficial use of their property. Since this was taken away, the court ruled in favor of the farmers.
By giving this story a copyright spin, I suppose our opponent was trying to get at the idea that when technology creates a commons, people who claim their rights in the face of it are foolish and benighted and standing in the way of the world getting on with its business. But clearly the story makes a different point. People who live near airports the world over can thank those two clod-kicking, chicken-plucking farmers from my home state of North Carolina for the fact that they can sleep at night. Jet engines are quieter than they used to be. Flight paths are diverted from residential neighborhoods. Because the law recognizes that for progress to be just, the many advantages of new technologies – even transformative ones – must be balanced with the common law and the beneficial use of what the law has deemed to be their property.
In the context of copyright, those people are the authors and other creators who have poured their hearts and souls and time and talent into their work. The future is so rich with possibility. And so naturally I want to add that dose of dread I expressed at the beginning. For all of the promise of a Golden Age of copyright offered by the new permutations of content, we also must guard, quite seriously, against the prospects for copyright’s endangerment. A casual reading of the news columns tells us that intellectual property law is under a remarkable degree of scrutiny. You see it daily in the business and technology press. Much of this scrutiny falls on the patent side of intellectual property law. It focuses on so-called patent trolls who assemble portfolios of patents that they have no intention of converting to practice, but instead lie in wait under the bridges of the patent system to ambush manufacturers who have a stake in settling rather than being shut down by an injunction while they fight their case in court. The extent to which things like business methods and medical tests, even genes and life forms, have fallen under aggressive patent protection also feeds the conditions for a climate of reform.
Many of the same forces and attitudes have migrated into the copyright debate. Nobody on the copyright side can charge that a patient died because a medical test was left undone because it was too expensive due to a rightsholder’s licensing demands. But the attacks of the copyright libertarians against the “permissions society” are cut from the same cloth. And it is not hard to imagine, given the right set of circumstances, that the battleground could easily shift from the courts to Congress. All you need to know to see this as a distinct possibility is the fact that Google has started pouring some of its vast resources into lobbying and legislative advocacy in Washington. Will that lobbying and advocacy support copyright, especially fair use, as it has traditionally been seen? Don’t bet the farm on it. The company says its lobbying agenda “is really about promoting the open Internet as a revolutionary platform for communication.”
What that tells me is that we have to be prepared to fight. Not fight the open Internet or its promise of revolutionizing the distribution of knowledge, but fight to assure that the rights of creators are preserved as an integral part of that admirable vision. We writers need lawyers like you, lawyers who, as Jane Ginsberg has so eloquently put it, love copyright for its “intellectual fascination and its inspiring goals of fostering creativity and protecting authorship.” The true test of the future, whether it be a book-filled or a bookless world, will be to preserve the role of the creator both in the public imagination and in the language of the law.