Best Selling Author Barry Eisler On Copyright, Piracy And Why SOPA/PIPA Are 'Extremely Disturbing'

Copyright

from the papyrus-scrolls-are-difficult-to-pirate dept

I’ve written about best-selling author Barry Eisler a few times, for his recent decisions to turn down a half million dollar publishing deal in order to focus on alternative paths to bringing his books to market (first self-publishing ebooks and then doing a deal with a much more innovative and nimble Amazon). I had the pleasure of meeting up with Barry for lunch recently, where we had a fascinating conversation on a variety of topics — some of which we decided to turn into a few interview posts for Techdirt. The first one is on copyright, a subject Eisler is quite familiar with. Prior to becoming such a successful author… he was an IP lawyer. Of course, now, as an author, many might think he would support stricter copyright laws, but he actually goes the other way and makes a bunch of cogent points not just on copyright in general, or even the legal proposals like SOPA and PIPA, but also why we’re in such a situation with those laws being proposed.

Techdirt: While millions of people know you as a bestselling novelist, many people might not realize that prior to your career as a writer you were an intellectual property lawyer. Obviously, the combination gives you an unusual perspective on the question of copyright law. What are your thoughts on the state of copyright law today?

Eisler: It?s out of balance. The purpose of copyright laws?indeed, the purpose of intellectual property laws generally?is to create a limited monopoly on the part of the copyright holder sufficient to incentivize artists and inventors to create. The theory behind copyright is that without a means by which they might profit from their work, many artists might not bother, in which case the wider society would be denied the benefit of paintings, movies, music, novels, software, etc. But extending the monopoly past the point at which it creates the incentive itself is harmful to society, because doing so keeps copyrighted works out of the public domain. Think of it this way: anything beyond what?s required to incentivize artists is a windfall to artists and a detriment to society.

Historically, copyright law has moved in one direction only?it?s expanded. A common theory of copyright is that great protections must be good for authors, and if it?s good for authors, it?s good for the public. In your experience, is that accurate… and as an author, how do you feel about this view of copyright law?

Many people approach the question of how long a copyright should endure from the standpoint of what?s fair to artists (purely coincidentally, many of these people are artists). ?But the artist created it!? the thinking goes. ?Shouldn?t she profit??

Copyright terms have grown to be over a century. No reasonable person can claim that, with a term of less than a century, artists wouldn?t be adequately incentivized to create. So current copyright terms are clearly too long from the standpoint of what?s best for society overall. Personally, I think a twenty-five year term would be more than enough. Anyone who claims he wouldn?t bother creating if he could only commercially exploit his creation for a quarter century wasn?t going to create anything worthwhile anyway.

Frequently, the battles over copyright law are positioned as being the ?tech industry? vs. the ?content industry.? And yet, many of the innovations from the tech industry have resulted in a much healthier content industry?since the tech world provides many of the tools that help create, distribute, promote and monetize works. As someone who?s lived in both worlds, is this a battle between two sides? If not, why do you think many view it that way?

I don?t see it as a battle at all, for precisely the reason you articulate. For example, I sell more books now in digital than I ever did in paper, so without the advent of digital distribution technology, I?d be making less of a living from my books. Now, digital enables piracy in a way paper never did, so you might argue that digital is bad for authors, but this argument is belied by my own bottom line and that of increasing numbers of other authors. In fact, anyone who thinks that new distribution technology, by enabling piracy, must be bad for artists must also believe artists were better off in the age of papyrus scrolls and stone tablets, which, as we all know, are notoriously difficult to pirate.

I think there?s an element of fear at work, as well. After all, if we?re making a living one way and something disruptive comes along, it?s natural to see the new thing as a threat to what?s established rather than as an enabler of something even better, and we?ll often fight the new thing rather than opening our minds and figuring out a way to embrace and exploit it. Natural, but from a business standpoint, counterproductive.

Do you have any thoughts specifically about the new bills proposed in Congress to expand copyright law (SOPA in the House, PROTECT IP in the Senate) by making third party service providers liable for certain forms of infringement and/or requiring them to cut off access and services to accused websites?

I?d call these bills insane except that, like many bills that seem insane when you judge them by their ostensible purposes, this one begins to make a great deal of sense when you understand what it?s really intended to do. For example, you might wonder why the Bush administration scooped up thousands of terror suspects and tortured them in Guantanamo and black sites, or why Obama administration has been so public about its torture of accused Wikileaks whistleblower Bradley Manning. Both cases, at first blush, seem to be public relations disasters for the politicians in question, and it?s only when you understand what these politicians are in fact trying to accomplish?a demonstration that the US government can pluck you out of any recognizable legal framework, prevent you even from access to a lawyer and from visits from the Red Cross, hold you indefinitely and abuse and torture you mercilessly?that you can begin to understand that these policies are not insane, but are instead carefully designed to strike fear into the hearts of anyone who might oppose US policy or undermine its obsessive secrecy.

I do. Every time content providers try to slow, control, or stop new distribution technology, they wind up hurting not just consumers, but also themselves. Hollywood fought television and then video recorders, both of which turned out to be huge Hollywood moneymakers after Hollywood?s litigation attempts failed. The music industry succeeded in destroying Napster, and in the process helped turn Apple into the world?s largest online music retailer, with the record labels as its supplicants. Lower-cost, more efficient distribution methods are developments content providers should embrace, not attempt to stymy, and fighting technologies that benefit consumers is about the best way I can imagine to lose money, create new pirates, and seed business opportunities to competitors.

And of course, then there?s the problem of a new Chinese-firewall level of governmental control over content. But as I note above, that?s not an unintended consequence. That one is by design.

What would you say to the big traditional publishers in New York who think laws like this are necessary?

I?d tell them to make original mistakes instead of repeating ones already made by the music and movie industries. I?d tell them to stop relying on monopoly rents to shore up their business and learn to compete in the digital marketplace, instead. I?d tell them that properly understood, digital distribution is an enormous opportunity, not a threat, and if they could only focus on building windmills rather than windbreaks, they could survive and even thrive in the digital world that, whether they like it or not, is fast displacing analogue.

Thanks to Barry for an enjoyable conversation. We’ll have a further discussion more specific to publishing and his experiences there soon….

Filed Under: barry eisler, copyright, pipa, protect ip, sopa