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Some truth about copyright

Mr Eldred speaks to the Reg

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I've railed against the RIAA and MPAA and their congressional sock puppets in some of the cruelest language I've ever used in print. But my concern has always been the abuse and perversion of copyright. I'm concerned about the ways copyright is being turned into a weapon of big-media pigopoly against honest consumers, researchers and journalists. I'm concerned about how it's being used to criminalize consumers for doing perfectly reasonable things allowed under the Sony decision and the doctrines of fair use and first sale. I'm particularly alarmed by the way the DMCA makes criminals of people exercising fair use, and how it paves the way for electronic access controls and subsequent pay-per-use extortion by greedy Hollywood fat cats.

Making it a crime to circumvent an access control for legal purposes is unconscionable. It can prevent consumers from accessing purchased products on equipment of their choosing; it can prevent them from making backup copies of electronic media as insurance against data loss or corruption; it can prevent them from trading purchased digital media innocently, the way one might lend a book one has purchased to a friend.

It can make it impossible for journalists and critics to do their job. For a simple example, imagine that I wish to review a film on DVD. According to fair use, I'm entitled to extract and publish a short clip of my choosing to illustrate my position. But the DMCA makes it illegal for me to duplicate any portion of the DVD, so my right of fair use is denied and the public gets to see only those self-serving clips the studio has selected for its promotional trailer, which are of course going to be the most appealing ones. According to the Copyright Act, I have the right to publish a brief bit I deem useful for illustrating my critique; but according to the DMCA, I'm a criminal for exercising that right.

Clearly, the illegality of circumventing an access control has got to be made rational according to the intention of the person doing it. The DMCA can be a useful prosectorial weapon for stacking charges onto a hardcore piracy operation, but it is also a pigopolist weapon making criminals of people going about their perfectly legal business.

El Dread

Copyright is being abused by well-heeled special interest groups with the cooperation of a corrupt Congress; there's no question about that. But that hardly means that copyright is a good thing only for special interests and a generally bad thing for the public, which seems to be the assumption on which the Eldred crusade is based.

At the risk of oversimplifying, one could say the chief assumption of the Eldred crusade is that by drawing works back into the public domain sooner we will foster creative output. There are two basic mechanisms here. First, works in the public domain can be used by others to create derivative works. Second, by giving an author a long copyright from which to profit we take away his incentive to write more.

This, much like neo-Confucianism, Communism and Reaganomics, makes sense assuming some utopian Middle-Earth fantasy-land, but it falls hard on its face in the harsh light of reality. The publishing business is a finely-tuned monster which simply can't be ignored.

In a recent story I mentioned that 'I was delighted some months back to find Robert Graves' superb memoir "Good-Bye to All That" available in a cheap paperback edition, which I bought happily. Were it not still under copyright, it might not be available except on the Net.'

Eric Eldred wrote, in an e-mail to me snottily entitled Good-bye to your arguments, "if 'Good-Bye to All That' were in the public domain, you could buy a paperback edition for about $1."

Right, Eric -- assuming it can be printed for free and distributed for free and promoted for free, and further assuming that the retailer will be so grateful for this magical inventory that he'll be happy to earn only $1.00 per copy. Otherwise we're going to have to stretch that dollar something awful. When we start printing dollars on latex, do let me know.

The problem is that Eldred simply doesn't understand how publishing works. He's obviously never written a book. He doesn't understand how much time and money goes into producing a book; he doesn't know how authors' rights work; and he doesn't know, or care, that print-on-demand books earn nothing for the author. Essentially, he doesn't know how little money an author would make if it weren't for a nice, long copyright in his name. Indeed, most authors earn precious little as it is. If it weren't for the incentives the copyright law provides, far fewer people with good ideas would venture into publishing and our lives would be even poorer than they are.

Spending lots of time losing lots of money

Let me break it down to you. First off, a copyright is not a single right but actually a bundle of rights that you grant to publishers for a limited time in exchange for money. To make it simple, I'm going to approach this in an exemplary manner.

Let's say you've spent three years researching and writing a book -- hardly an unusual investment of time and effort. Your agent suddenly announces that he's lined you up with a publisher, and you've just spent more money on the case of Champagne you bought to celebrate your achievement than the book is going to yield. But you don't know that yet. You think you're going to make big bucks.

But when the much-anticipated contract arrives, you'll wish to God you hadn't sprung for the '89 Roederer Cristal.

The publisher has done a bit of a cost analysis. He's going to print 30,000 copies of your magnum opus and he reckons he'll sell 20,000. Those that get returned or sold at remainder, well, you don't make any money on them. He figures he'll bring in about $300,000 gross. He figures printing, promoting and shipping will cost him about $250,000. That leaves $50,000. He wants to make about fifteen per cent on his outlay, or $37,500, which leaves you something like $12,500 when all is said and done. Now your agent takes ten or fifteen per cent of that, and you end up with less than $4,000 a year for your efforts, positioning the illiterate teenage Martian at McDonald's who stuffs up your lunch order considerably higher on the economic food chain than you, Professor.

Now, who's the real dummy?

Unfortunately, US sales of your magnum opus are inadequate to inspire the publisher to exercise those paperback rights he insisted on buying. But fortunately, your agent isn't half the moron you are. The publisher bought a slew of rights for that lousy $12,500, but your agent (you can go kiss him now) made sure that they would revert to you within two years if the publisher failed to exploit them. These include translation rights into numerous languages, English language rights abroad; paperback rights, second serial rights, and performance and dramatic rights. Your first serial rights were exercised, with profound futility, trying to get America interested in your tome when the publisher managed to wedge Chapter One into the New Yorker.

The book sells poorly and the publisher's estimate of returns and remainders proves horribly accurate. You think maybe you'll give up writing.

But lo and behold, two years later, when you get your translation rights back, your agent makes a fresh deal and you find that your book -- maybe it was you; maybe it was the translator -- is a smash hit in Japan. Everyone is reading it. Soon you're selling the Japanese paperback rights for several hundred thousand dollars. Riding on the Japanese buzz, you manage to sell the French and UK rights. The book sells well in both markets and goes into paperback again. Finally, you're making some decent money.

Several years pass and the book goes out of print. Again your agent proves himself an invaluable asset. He's managed to keep your contrats free of ambiguous language which would allow greedy publishers and blind zealots to claim that the book is in print merely because it's available as a Web object or a print-on-demand entity. Five years after it goes out of print -- meaning it's not available in retail shops thanks to your agent's intelligence and experience -- you get all of your un-exploited rights back. You'll likely sit on them for a while because you're busy right now, but in time you'll try to wring some more money out of them. Or perhaps your estate will, after you've died and become even more attractive.

Meanwhile, your very decent return on investment on MagOp One has inspired you to write more books. You've got more talent than your original publisher imagined. The fact that you made decent money the first time around didn't tempt you to sit on your ass and suck your thumb as the Eldred crusaders pretend, but in fact inspired you to spend more time producing good copy because now you know there's money to be made. And it inspires others to do the same, because now they know there's money to be made.

And so long as you have those rights to sell, your publisher, whoever and wherever he is, gets a little short-term monopoly which ensures that there's money to be made for him, too. And this is how excellent, seventy-year-old books like "Good-Bye to All That" manage to stay in print in handy little paperback editions which we can read conveniently on the subway. ®

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