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Computing At Chaos Manor:
September 4, 2007

The User's Column, September 2007
Column 326, part 1
Jerry Pournelle jerryp@jerrypournelle.com
www.jerrypournelle.com
Copyright 2007 Jerry E. Pournelle, Ph.D.


Many of you will already be familiar with the flap that developed when the Science Fiction Writers of America, acting to protect the copyrights of certain members, managed to request the deletion of a few documents that should not have been included in the list sent to a commercial web site called scribd.com. One of the documents erroneously included in the list was a copy of a work by Cory Doctorow. Doctorow had not posted this document; that was done by a user of the site; but Doctorow had given permission for the distribution of the document.

His story is told at this link and has spread across the Internet. A similar version is given on ars technica.

If one reads those versions and nothing else, the case is very clear. SFWA in a bumbling attempt to bully a legitimate web site threatened use of the Digital Millennium Copyright Act, and was properly smacked down by the Electronic Frontier Foundation to the cheers of all those who are hip to the ways of Web 2.0.

The Facts of the Case

First, let's establish the facts. For several years the Electronic Piracy Committee of the Science Fiction Writers of America has acted, usually quite informally, to control the electronic publication of copyrighted works absent permission of the copyright owner. About 100 members, and several author estates (SFWA has an "Estate Member" category of membership) have authorized SFWA to act on their behalf in these matters. Some members, including me, may have the resources to handle these matters on our own, but many do not; and in any event it's a lot more convenient to have an authors' association act for us than to do all the correspondence ourselves.

In almost every case, the SFWA action consisted of an email to a web site: "Sir, did you know there's a lot of copyrighted material posted on your web site, and the copyright owners have asked us to ask you to remove it..." And in the vast majority of the cases that would be the end of it. Most web sites cooperated, the offending materials were removed, and that was that.

A few weeks ago, a reader sent me a note: "Did you know that almost everything you ever wrote is posted on www.scribd.com?" I didn't know that, but when I went to look at that site, I found it was true: not only everything I ever wrote, but everything Niven ever wrote, and everything we ever wrote together was posted on scribd and available to anyone to download.

I didn't like that. I do not like the idea of a commercial web site using my works as a premium to encourage web traffic. I can't do that for myself with all my works because in some cases I have licensed the electronic rights to a publisher! Why should they be able to offer a free copy of my work to get people to come to their site, when I can't legally do that? It just didn't seem right.

I informed Dr. Andrew Burt of the SFWA anti-piracy committee. He looked at www.scribd.com and found that Niven and I weren't the only ones whose works were available on that site. There were works by Heinlein. Nearly the entire literary output of Elizabeth Moon. Nearly everything the late Jack Chalker ever wrote. Much of the work of A. Bertram Chandler. Works by Poul Anderson. Note that in these latter cases, the authors are dead, but their widows own the copyrights and manage the estates, in at least one case this being her major source of income.

There were works by Asimov and Silverberg, Weber and Van Vogt, Vonda McKintyre and Harry Turtledove. There were, in summary, thousands of copyrighted works available on scribd. It is possible that some of those were there by permission of the authors; but there were two entire short story collections by Harlan Ellison that most assuredly were not there with the author's permission - Harlan has made no secret of his opinion of electronic piracy. Many of us, including me, contributed to support Harlan's legal efforts - moreover, when he won a significant case, he returned the money. I very nearly framed rather than deposited the check sent by his wife Susan.

Since SFWA does not act for Harlan - he has his own very effective resources including one of the best copyright attorneys in the US - SFWA did nothing in his behalf other than inform his lawyer. There remained, though, thousands of copyrighted works by members of SFWA who had asked SFWA to act in their behalf.

Dr. Burt's first action was standard: a polite email to scribd.com informing them that there were hundreds to thousands of pirated works, from short stories to novels, on their web site. There was no response. More emails were sent. At one point Dr. Burt suggested that scribd should consider requiring those uploading documents to their site to state that they had, or believed in good faith that they had, the authority to post that document, either because they owned the copyright, or because the document was public domain, or had been licensed under Creative Commons or some other file sharing license. That suggestion was refused.

It became obvious that scribd would respond to one and only one kind of request: a threat demanding takedown under the provisions of the Digital Millennium Copyright Act (DMCA). DMCA formal takedown orders are complicated. They require that you list the author and title; the URL; and that you attach a statement under penalty of perjury that you own the copyright or have the authority to act for the owner. That order scribd would obey; but no other. An example of a legal takedown order - which scribd did obey - is given here.

There were thousands of copyrighted documents on the scribd site. In order to generate a takedown order, each potential candidate document had to be downloaded and opened, and examined to see if it was what it appeared to be. Dr. Burt wrote a simple program to generate a list of documents that might be pirated. It generated hundreds, of course. He then looked at each one. This took a lot of time. Eventually he sent the list to scribd and in another letter referenced it as a takedown notice. Since it didn't actually comply with the requirements for a takedown notice, it probably had no legal effect, but scribd decided to treat it as one.

At least three of the documents named on that list should not have been on the list. I say at least three because SFWA heard from three authors; there may have been more, as many perhaps as ten; this in a list of hundreds of documents which scribd had absolutely no right to post. Among those erroneously included was one document originally written by Cory Doctorow but posted by someone else who did not (at least in the first page or so) identify it as written by Doctorow. (Dr. Burt like most of us would have seen Doctorow's name as a warning flag.) You already know Doctorow's near ballistic opinion about the result.

Note that when SFWA was informed that there were documents on the takedown list that had every right to be up there on scribd, those documents were instantly removed from the list and an apology was sent. Thus infringement, the harm, the damage was temporary, and remedied when discovered. For a while a document was not available in one place on scribd, although it was available elsewhere. (It's back up now.)

The Explosion

Shortly after Doctorow posted his complaint the Internet exploded. SFWA's errors grew in the retelling. SFWA was trampling on the rights of those who believe in Creative Commons. SFWA was infringing on copyright! SFWA was misrepresenting itself. SFWA was the bad guy.

Forgotten in all this were the rights of the authors who had created the stories being posted on scribd.

The explosion was not confined to the general Internet. There was also an explosion within the closed SFWA Internet conferences. Some members waxed obscene in their condemnation of Dr. Burt and anyone who dared defend him. I was accused of caring only for my own rights, and indifferent or hostile to others. It went well beyond that. I won't repeat some of the obscenities and scatological comments made about me, many by people you've heard of and possibly admire.

One fairly prominent author expressed terror: SFWA looked like the bad guy, there would be an organized boycott of books by SFWA authors, and she would be unable to support her family! All as a result of SFWA's terrible actions and indifference.

Enter Electronic Frontier Foundation

It couldn't have happened at a worse time: many of the professional members of SFWA were in Japan for the Worldcon. Others were on Labor Day weekend holidays, at US SF conventions, or just not paying attention to online matters. As a result, much of the SFWA internal discussion came from a very few members who spent a lot of time denouncing SFWA and expressing terror about the public relations disaster.

At this point the Electronic Frontier Foundation lawyers, acting on behalf of their client www.scribd.com, sent a letter to SFWA. http://blog.scribd.com/ It was rather intimidating. It was also a surprise: one would have thought that if EFF were going to get in this act, it would have been on behalf of the authors! My last face to face encounter with the EFF officials was when I presided at the funeral of Poul Anderson, whose works were pirated on scribd! But here it was, an intimidating letter to the SFWA officers.

As a result, SFWA disbanded the Electronic Piracy Committee. SFWA will no longer act on behalf of writers in these matters. If a member's work is pirated, the member is on his own in trying to do anything about it. EFF was quite successful in protecting its client www.scribd.com.

Those are the basic facts of the situation.

Further Developments

I wasn't pleased with SFWA's action in this matter although I can hardly blame the officers. They were faced with the resources of the Electronic Frontier Foundation, and there didn't appear to be any strong member sentiment supporting them.

As an interesting side note, as this flap spread across the Internet, www.scribd.com discovered that not everything went their way. When this began my personal web site www.jerrypournelle.com was pretty well alone in defending SFWA, but over time others joined in raising questions about the official version of the story.

Among them were Peter Glaskowsky, an English site, and others. A counter sentiment began.

Scribd is trying to raise venture capital - has raised several millions of dollars already - and the venture capital community (some of them friends of mine) began to look into this and discover that scribd might not really be the good guys in this. I'm even told that one of my comments, that there is a specific (and very stern) Biblical injunction against stealing from widows and orphans and scribd seemed to be doing just that by posting their intellectual property without permission, was brought up. There are, of course, Jews, Catholics, and Masons within the VC community...

In any event, scribd has in the past few hours apparently been taking frantic measures. They have been removing every contribution by certain persons who were egregious offenders in posting copyrighted works without permission. Dozens of works covered by Creative Commons and other such licenses have been summarily taken down, not because of SFWA - SFWA no longer is involved - but by scribd itself. I suspect that at least one Doctorow document (uploaded not by Doctorow but by one of those third parties) may have vanished. It will be amusing to see Doctorow's reaction to this terrible injury to his rights.

So What Does It All Mean?

My apologies if I have found some of this amusing, because behind all this tempest in a teapot there are deadly serious issues.

First, let's dispose of some deadwood.

I haven't seriously asserted that anything scribd has done has caused me any real financial harm (nor did anything SFWA did cause financial harm to Scalzi and Doctorow and the others who have complained so bitterly). At present it is pretty well impossible to show much financial effect at all from electronic piracy. Eric Flint of Baen Books has looked at this closely, and not only does he not find any harm comes from electronic publication of a book available in print, but if there is an effect it is probably positive: that is, someone begins to read a work of fiction (authorized or pirated, it makes no difference) and may well be influenced to go buy a copy. We know that happens because people tell us so. Now perhaps there is less incentive for people to say "I was going to buy the book, but I found it free on a pirate site and decided to read it there, so ta-ta!" - but in fact I have never heard of anyone saying it.

In other words, just now, the arguments are all moral and ethical and have to do with an author's moral and ethical rights to control of his own work; and when we speak of theft of intellectual property, we aren't really talking about theft in the sense of financial harm. On the other hand, it's important to note that while this argument applies to authors and the SFWA members SFWA was acting to protect, it applies with even greater force to the injuries suffered by Doctorow and Scalzi and the others who waxed so indignant over SFWA's actions.

This financial irrelevance is true now; it is not clear that it will remain true in future. We'll return to that in a bit.

DMCA Sucks

Another bit of deadwood is the argument that since DMCA is deeply flawed - downright evil in places - badly in need of amendment - that somehow gives everyone the right to ignore the legitimate rights of authors.

I don't think you know anyone more critical of DMCA than I am, and I've been pretty loud in my denunciations of the excessive extensions of copyright life embodied in that ill-conceived act; nor has anyone been more vocal in denouncing some of the criminal provisions of DMCA. We can all agree that DMCA has to be rewritten.

When Congress rewrote copyright law to put the US in conformity with the Berne Convention on Copyright, the result was the Copyright Act of 1975. SFWA was heavily involved in that work. Then President Fred Pohl, and other SFWA officials including me, testified to Congress and worked with Congressional Staff. So did the Authors' Guild and other writers associations. The result was a pretty good law.

The Copyright Act of 1975 changed the nature of copyright: prior to that, copyright extended for 28 years, renewable in the 28th year for an additional 28 years. Many authors, including me, were satisfied with those terms; but that had to change.

The change was forced by the Berne Convention. If the United States was going to join the rest of the world, we had no choice: copyright has to be for the life of the author plus fifty years, copyright must be automatic and hard to lose, and there must be no requirement for renewal. These provisions are hard wired into the Berne Convention and are not negotiable. They originated with Victor Hugo, whose influence and persuasiveness were decisive when the Berne Convention was drafted. He insisted on all three of those provisions. It would be nearly impossible to change them now.

The Berne Convention, alas, gives member states the right to increase the term of copyright, but never to shorten it. Congress, influenced by corporate lobbyists serving Disney and other such companies, has extended the term of copyright to what many call obscene lengths. Now what Congress has done, Congress can undo; and those who really hate lengthy copyright terms can and should work to have them cut back to life plus fifty years. They won't find any major opposition from authors' associations. The last time SFWA debated the issue, there were a few who were happy enough with the present terms - one children's book author says she likes the notion of her great grandchildren being supported by her works - but the general consensus was that life plus fifty years is either fair or more than fair, and certainly enough. I doubt SFWA would actually join an effort to shorten copyright terms, but I am absolutely certain it would not actively oppose the change.

There are plenty of other changes needed in DMCA, and SFWA - provided that it has not been entirely emasculated by the current imbroglio - will probably be working to get them. But whether or not DMCA is changed, the fact that part of DMCA sucks isn't and shouldn't be thought a moral excuse to rip off the rights of authors. Of course you knew that. As Samuel Johnson observed, we seldom need educating but we often need reminding.

The Commercial Future

At the moment, electronic book rights are not worth very much. I recently was paid a few thousand dollars advance for the ebook rights to a bundle of my older works, and we'll soon see if they have enough sales to earn out. I have hopes, but I am also a realist. Just now, ebook income is betting on the come.

Meanwhile, Eric Flint has recently said that in the present market, most of a fiction writer's income will come from early hardbound book sales. He said this in the context of a discussion of the effect of the used book market on author incomes, but he has also said it elsewhere and in other contexts. As a senior Baen Books editor, Flint has more information on this subject than most people.

I don't dispute his statement. I do find it alarming.

Much of my lifetime income has been derived from paperback books. The auction of the paperback rights to Lucifer's Hammer thrust Niven and me onto the publishing stage, and Hammer's subsequent 14 week stay as the #2 paperback bestseller not only changed my life, but changed the attitude of publishers toward the income potential of science fiction. Hammer proved that sf books could break out of category.

Of course there were those who said Lucifer's Hammer was not actually science fiction; but a few years later Footfall also hit the paperback best seller list, and it would be pretty hard to say a book that featured two-trunk elephants from outer space is not science fiction... My point being not so much to brag (I think of it as preening) as to illustrate. In the past, most of an author's income has not come from early hardbound sales. It came from paperback sales.

Now the paperback book business is in real trouble. I have discussed some of this before, and you might want to go read what I have said.

That's relevant here because as paperback book sales decline, their place may be taken up with electronic book sales. By eBooks I don't just mean electronic copies of what might have been published in paper. I foresee a time when eBooks may have all kinds of embellishments: maps, illustrations, color photographs of scene settings, models portraying characters as the author imagines them in both still and motion video, audio clips, background music. I can see a time when a real eBook will be preferred to a standard paperback as a Technicolor movie was preferred to black and white, or TV was preferred to radio, and color TV to black and white TV. Note that in the examples above, TV didn't replace radio; but color movies have pretty well replaced black and white. My guess, and it is no more than that, is that straightforward books of text will continue even as augmented eBooks eat up a lot of their revenue.

The "graphic novel" has become a venue of its own; as eBooks become more popular, one suspects that the eBook venue will be a natural for graphic novel distribution. Production and distribution costs are severe with graphic novels. I'm learning more about this as I experiment with writing a graphic novel about Chrissie Claus, Santa's teenaged elfin granddaughter. (Her father, Santa's son, has declined to go into the family business.) I'm having a lot of fun deriving plots, because I really love the character and the milieu.

My point, which I have made before, is that eBook sales may become a very substantial part of an author's income in the next decade; and if so, then protection of electronic copyright may be important in a financial as well as a moral sense. It's one thing to assert that having a pirate copy of a book available doesn't hurt and may help sales of a paper copy of the book; it's quite another to say that if a reader acquires a free copy of an electronic work from a pirate site he'll instantly go buy a legal copy from the publisher. (If the reader is feeling grateful to the author he's more likely to go to the author's web site and throw some money in the tip jar, or subscribe.)

Peter Glaskowsky has other arguments for why we should defend author rights.

I have been writing about this brave new world of electronic publishing since 1973, and now, suddenly, it's upon us. Everything is changing, and the future isn't at all clear.

Depriving a laborer of his wages is, along with stealing from widows and orphans, one of the sins that traditionally cries to Heaven for vengeance.

As these changes happen, I think it's important that writers have some means of protecting their rights. The laborer is worthy of his hire. Alas, the vengeance of Heaven doesn't seem as reliable today as perhaps it once was, and writers need some earthly agents to act as their champions. One of those earthly agents has been, until recently, the Science Fiction Writers of America. In the face of intimidation by the Electronic Frontier Foundation on behalf of its commercial client www.scribd.com SFWA has disbanded its anti-piracy committee and ceased act for member writers and their estates; this at a time when protection of electronic rights may be of crucial importance.

The good news is that public pressure from readers seems to have persuaded scribd to act as it should have acted weeks ago when we first tried to solicit their cooperation. We can all hope this is a first sign of a growing maturity in Web 2.0.

The bad news is that it may not be possible to prevent electronic piracy, in which case the world of augmented novels and other such works I described may never come to pass. Publishers aren't going to give advances to writers unless they can make money by publishing the books. If the books are instantly given away the day they appear, the publisher can't justify risking an advance; and many writers can't afford to finish a book without that advance.

Robert Bruce Thompson is one of those who thinks copyright protection is a lost cause: the public doesn't think copyright theft is immoral, and we don't have the police and court resources to enforce it absent public cooperation. If we could enforce those rights, the resulting oppressive tactics would be worse than the disease. Peter Glaskowsky is convinced that there will be technological means for enforcing Digital Rights Management in a painless way that doesn't unduly inconvenience legitimate buyers. I could name forty other people with fifty different opinions among them; and while I sometimes pretend to know everything for a living, I am not really convinced of my omniscience.

The issue isn't going away. For now, I choose to stand with those who defend the moral rights of authors to control their own works: let the authors decide. I also feel a bit like Horatius at the bridge, but my sword is broken, there are holes in my armor, and the City Fathers behind me are debating about who will pay for rebuilding this bridge...

http://www.jerrypournelle.com/reports/jerryp/lays.html