Guild: A medieval association

guild-logo1A few weeks ago, the Supreme Court issued a decision that’s good for garage sales and flea markets but (if Scott Turow is to be believed) will bring about “The Slow Death of the American Author“. Turow is president of the Authors Guild, an 8,000-member club that calls itself “the nation’s leading advocate for writers’ interests in effective copyright protection, fair contracts and free expression”. He’s also a practicing attorney and a best-selling (that is, rich) author of nearly a dozen books with over 25 million copies in print. Oh, and half a dozen movie adaptations. (Did I say rich?)

Turow issued his anticipatory autopsy in an April 7 New York Times OpEd piece commenting on Kirtsaeng v Wiley. The defendant in the case, Supap Kirtsaeng, made a small fortune following the mantra of free-market capitalism: Buy low, sell high. For Kirtsaeng, low was the retail price in Thailand for English-language college textbooks whose U.S. price was (no surprise to any student) high. Very high. Kirtsaeng’s family in Thailand purchased the books and shipped them to the U.S. where he sold them on eBay. The textbook publisher, John Wiley & Sons, claimed this particular example of entrepreneurship violated their copyright. The Supreme Court sided with Kirtsaeng, holding that the “First Sale” principle trumped Wiley’s claims. First Sale says that, once you’ve legally purchased a book, it’s yours to dispose of as you like: Keep it, lend it, rent it, sell it, burn it, whatever. You bought it, you own it.

Turow uses the Kirtsaeng victory as a launching pad into a universe of mortal grievances felt by his members. His OpEd is rife with errors of fact and analysis, which many articles have documented in great detail. He’s wrong about the Constitution (the Founders didn’t “instruct Congress to protect” the livelihood of authors), wrong about publishing (more books are being written and read today than ever), and wrong about economics (ask the bottled-water industry about competing against free alternatives). For in-depth rebuttals on these items and others, see (for example) Mike Masnick in Techdirt, Jeremy Greenfield in Forbes, and Barry Eisler and Joe Konrath in Joe’s Blog.

I want to focus here on what I find to be one of Turow’s most outrageous ideas, especially insidious because it’s unstated and yet pervasive. It’s the implicit presumption that, once an author has produced a book, he or she is entitled to some sort of payment from every person who comes in contact with that book for the rest of time. This can be seen as the exact inverse of the First Sale principle, and so it’s easy to understand why Turow finds the Kirtsaeng decision so troublesome.

Turow gives us three clear examples of this expansive view of authors’ rights:

  1. The used book market. Turow laments “the enormous domestic market for secondhand books” and notes that “authors won’t get royalties” from the sales of imported books now okayed by the Supreme Court. Of course, each book sold on the secondary market has already been purchased somewhere, with royalties paid at that time. Apparently that’s not enough for Turow, who implies that authors are owed a cut of the purchase price each time a book changes hands. Let’s think about applying that idea to the used-car market the next time you’re ready for a trade-in. Or if that’s too corporate an example, how about the hand-made guitar or the craft-store jewelry you bought 15 years ago and no longer use. Why don’t those artisans have a claim on all future transactions involving their creations?
  2. Libraries. Turow tells us that libraries, too, are part of what’s killing the American author. “No one calls our public library system socialistic,” Turow says (thereby calling it socialistic), “though it involves free distribution of the goods authors produce.” Now, wait just a second: The libraries purchased those goods, generating author royalties along the way. True, authors would undoubtedly be happier if everyone who wanted to read a book were forced to buy one rather than borrowing it from the library, but General Motors would probably sell more cars if there were no taxicabs or ride-share stations or rental-car agencies, not to mention buses and subway systems. Turow’s implication that it’s an unfair misappropriation of authors’ just rewards to get multiple uses from a single purchase escapes gales of laughter only because he buries it between the lines. And as to Socialism, Turow is conveying the subliminal message that libraries are un-American. Time for a history lesson: More than 50 years before the Constitution gave Congress the power to grant copyright protection to authors, Ben Franklin started the first lending library. And no one’s more American than Ben Franklin. Now, if you’re looking for something un-American, you can’t find a more profound affront to capitalism than copyright, whose sole purpose is to eliminate competition by means of a government-enforced monopoly.
  3. Google. Turow’s unhappiness with Google knows no bounds, and his complaints are thoroughly debunked in the articles cited above. Here I want to discuss Turow’s objection to Google’s basic business model, generating advertising dollars out of an unrivaled ability to find and display content from all over the Web. To Turow, what’s illegitimate is doing this “while sharing none of the revenue with the author or the publisher”. Turow has it backwards, of course. The real question is why Google provides its services at no charge to content creators, including Turow and all the other authors, vastly increasing their visibility and accessibility to the public for free. Here are two notes of irony: In writing this article, the easiest way for me to find Turow’s New York Times piece was through Google. I suspect I’m not alone, and I’d be surprised if Turow himself hasn’t once or twice directed people to his article by telling them “Google Turow OpEd”. Irony #2: The online New York Times page with Turow’s article has ads, some inserted by Google-provided technology. Nearly all of that ad revenue goes to the Times. None, I suspect, goes to Turow.

Digital communications and the Internet have required the reinvention of jobs, businesses, and business models of every kind. While the monopoly granted by copyright law has provided a temporary buffer against change for a few industries and workers, the grace period is waning. Turow may believe he can insist that the coming change be on his terms, but he is wrong. For all its errors, Turow’s slow-death analysis should remind his membership of the lesson taught by Darwin: Adapt or die.

/Steve/

Cognitive dissonance in the music business

Renowned neurobiologist, primatologist, and MacArthur Fellow Robert Sapolsky believes that the ability to maintain two contradictory thoughts simultaneously is a uniquely human capacity. He argues, in fact, that it’s precisely what makes us human. On that basis, lawyers have contributed enormously to humanity. Here are three examples, the first two (probably) apocryphal, the third from today’s headlines.

Example 1, the case of the kettle. As summarized by the Manhattan Institute for Policy Research, “Readers who’ve been to law school may remember the chestnut known as the ‘Case of the Kettle’. A man is charged with borrowing a kettle and breaking it. His reply is that, first, he never borrowed it; second, it was already broken when he borrowed it; third, it was intact when he returned it.”

Example 2, the case of the dog. Paraphrasing from a 1978 Wall Street Journal article about well-known Texas defense attorney Richard “Racehorse” Haynes: You say my dog bit you, but I don’t own a dog, and he doesn’t bite, and you kicked him first.

Example 3, digital downloads. Two recent court cases hinge on how the sale of an MP3 download compares to the sale of a conventional physical recording, known as a “phonorecord” in Copyright-speak. In one case, the singer Eminem demanded that Universal Music Group calculate his royalties for downloads based on the higher rate for licensed material instead of the lower rate for phonorecord sales. UMG refused, arguing that the sale of an MP3 download was the same as a phonorecord sale. In the second case, EMI filed suit against ReDigi, a company that allows purchasers of MP3 downloads to resell those files under Copyright law’s “first sale” doctrine. EMI argued that the MP3 files were not phonorecords and thus not subject to first sale.

Putting these two arguments together, we see the music industry imagining transactions where what’s sold is a phonorecord but what’s purchased isn’t.

How very, very human!

/Steve/