Devils and dust

Several months ago, I read a number of comments made about piracy by then-incoming Authors Guild president Scott Turow. Book piracy is one of my labors of love, and I found his perspective under-informed.

I responded by writing a lengthy and (to date) unrequited “open letter to Scott Turow”.

In the letter, I asked Mr. Turow to keep talking about piracy and to use his position to gather, analyze and share data about both the instance and the impact of piracy on book publishing. Things are changing, maybe a lot, and it seemed then (as now) that data could improve understanding and inform actions.

As Tools of Change kicked off in New York, Mr. Turow co-authored (with Paul Aiken and James Shapiro) an impassioned and largely data-less call for the U.S. Senate and the White House to make good on a pledge to “propose a new law to address rampant piracy within the year.”

In the New York Times, Turow et. al. go on to create two straw men related to the “rise of the Internet”: the “many users and web companies who believe that copyright is a relic”; and a “handful of law professors and other experts who have made careers of fashioning counter-intuitive arguments that copyright impedes creativity and progress”.

I had two questions: Who are they talking about? And, what can I do to become one of the “other experts”?

Turow has adeptly framed what Bill Patry has called a “moral panic”, conjuring up folk devils as part of an effort to demonize those he feels are threatening who we are and what we do.

Few people seriously argue for the end of copyright. Credible arguments have been made to shorten the length of time for which copyright is granted. That length of time – in effect, a monopoly on the use of copyrighted material – now extends beyond the period most writers will walk this good planet of ours.

Copyright is given by the government to creators to allow for the potential for commerce over a limited period of time. The Constitutional phrase that Turow cites, “to promote the progress of science and useful arts”, cuts two ways, though: the creation of new work, and the dissemination and unencumbered sharing of that work.

If copyright is violated, it’s not theft (depriving someone of their work); it’s infringement. When infringement occurs, publishers and authors can seek relief, generally payment for unauthorized use. Changing the law, however (which is what the Authors Guild hopes will happen), should depend on an assessment of adverse impact.

Books uploaded to file-sharing sites are an infringing use. They represent (in my world) an “instance of piracy”. Someone did something with book content they should not have done. Copyright owners can seek remedies.

The real question is not whether piracy occurs (it does). You want to know what effect it has on sales, and ultimately (if you want to change laws related to copyright) you want to establish its impact on creation of works that “promote the progress of science and useful arts”.

This is where the Authors Guild and others continue to fall short. They point to instances of piracy and do not martial coherent data on its impact. They argue for a change in laws to help “protect” authors, but they fail to show any adverse impact on the creation of new works.

And, they ridicule people who ask for data or suggest that the data we have argues against overly long terms for copyright protection.

Fear’s a powerful thing. Invoking folk devils and creating moral panics make for effective tactics, and effective tactics do influence politicians.

The first article of the Constitution wasn’t written to protect authors, but to recognize that the progress of science and useful arts depended on a balance between individual gain and social good when granting exclusive rights. In seeking mindless enforcement, I fear the AG will kill the thing we love, slowly and surely.

Brian O'Leary

About Brian O'Leary

Founder and principal of Magellan Media Consulting, Brian O’Leary helps enterprises with media and publishing components capitalize on the power of content. A veteran of more than 30 years in the publishing industry and a prolific content producer himself, Brian leverages the breadth and depth of his experience to deliver innovative content solutions.

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