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

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?”

The answer is yes—but unless you believe that, for some sort of artist-centric moral reason, the artist should profit forever (along with her heirs into perpetuity), the next question is, “For how long?” And this question is properly answered not only by reference to profits for artists, but also by a consideration of benefits for society.

Imagine you’re starting a new country and that you have three alternatives for the creation of the country’s copyright law. You can have no protection for artists at all, in which case less art and fewer useful inventions will be produced, meaning that society is denied the benefit of these unproduced items. Second, you can have copyright protection lasting forever, in which case art and inventions will be available but always at a price. Third, you can have a limited copyright term just sufficient to incentivize the production of art and useful inventions, in which case art and inventions will be available and in relatively short order will become part of the public domain. Of these three possibilities, if your primary concern is what is good for the wider society, you’ll design your copyright laws based on #3, and you won’t have a term that’s a day longer than what you judge necessary to incentivize artists and inventors.

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.

Anyway, all these concerns about new technologies enabling piracy are missing a larger and more important point. To prove that piracy has hurt an artist’s profits, you have to demonstrate that: (i) the artist would be making more money in the absence of the pirate-enabling technology than in its presence (that is, that for example a novelist would be making more money in a pure paper world than in an increasingly digital one); and (ii) pirates, if somehow denied the opportunity to pirate the artist’s work for free, would have instead purchased a legitimate copy. These are exceedingly difficult things to prove and so far as I know no one has ever offered empirical evidence in support. By contrast, there is ample empirical evidence to show that piracy actually boosts legitimate sales.

One other thing you’d have to do to prove that piracy is harmful: you’d have to screen out the benefits of piratical word of mouth. Because how many legitimate copies were purchased as a result of the wider awareness of the work caused by pirates accessing it for free? Novelist J.A. Konrath, for example, practically begs people to pirate his books, and has sold over a half-million legitimate copies in part as a result. Anyone who believes there’s no word-of-mouth benefit to piracy must also believe there’s no word-of-mouth benefit to library loans.

The only way to fight piracy, and the best way to turn it to your advantage, is with cost and convenience. Fighting piracy with DRM and lawsuits is not only futile; it’s actually detrimental to the artist’s bottom line.

As to why some people insist on viewing the relationship between content and distribution technology as a battle, I think it’s a manifestation of a weird but widespread human tendency to think in either/or terms when more often things are both. Look at the way digital publishing is often discussed, with many people, including authors, insisting that writers must be legacy-published or self-published when common sense and empirical evidence demonstrate that in fact, authors can (and often should) be both.

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.

Similarly, you might think Obama’s attempts at health insurance reform were a fiasco, until you realize that it makes perfect political sense for him to pay lip service to progressive goals so as to garner progressive votes, and then blame Republican obstruction for the failure to achieve those goals and for the passage of insurance industry-serving legislation instead, thereby ensuring continued receipt of industry campaign contributions. Votes from the base; money from the corporations. Every politician’s wet dream, and no accident when it happens.

So yes, on the surface, the notion that the government might via SOPA shut down any website that doesn’t police content to the government’s satisfaction seems insane—as insane as penalizing kitchen knife manufacturers for stabbings or automotive companies for drunken driving or telcos for crank calls. But when you consider that SOPA will not only grant content providers enormous power to intimidate and disable content outlets of which they disapprove—a shortcoming that has been extensively covered here on Techdirt and elsewhere—but also that SOPA will give the government, too, unprecedented power to police Internet content, you start to understand that from a certain nefarious perspective, SOPA begins to make a great deal of sense indeed. And for anyone who values Internet freedom, such a purpose and result should be extremely disturbing and worthy of a fight.

As someone who has long relied on new technologies yourself—and who is now betting strongly on ebooks—do you worry about the unintended consequences of bills like these to actually do more harm than good to your own efforts as an author?

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

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  1. icon
    Barry Eisler (profile), 30 Nov 2011 @ 11:12pm

    Thoughts in Response

    Thanks for the interesting discussion, everyone. A few thoughts in response:

    Mike Rafferty, I think we'll continue to see Amazon experiment with different ownership and subscription models, with other companies following suit (and hopefully sometimes even taking the lead).

    John Doe, I agree that if there's one thing SOPA has going for its passage, its how much power it creates for the government. See also the Protecting Children from Internet Pornographers Act of 2011. Not to mention the Patriot Act. When the government wants to sell something, they know how to package it.

    John Doe, I tend to agree that DRM-free books are the way to go, and my titles with Amazon are in fact DRM free.

    Anonymous Coward, you asked what I believe makes someone an IP lawyer. A lot of things, I suppose, and I don't mind if you feel the decade I spent practicing technology licensing law as an associate at Weil, Gotshal & Manges' Silicon Valley office, as in-house counsel for Matsushita Electric Industrial (Panasonic) in Japan, and as General Counsel for Dejima, a now-defunct Silicon Valley start-up, is insufficient to warrant the nomenclature. I'm generally more interested in discussing the merits of arguments rather than the CVs of the people making them.

    Out-Of-The-Blue said, in response to my argument that, to show an artist was damaged by piracy, you must demonstrate that but for the piratical opportunity the pirate would have purchased a legitimate copy, "That's the standard strawman. In either case mentioned, producer gets cheated, and that's self-evident."

    I don't know what you mean by cheated, so I don't know what's self-evident to you. My argument is that unless the pirate would have purchased a legitimate copy, the artist has suffered no loss from the piracy. This is no straw man argument; it's a matter of common sense, logical thinking, and what tort lawyers call "but for causation." To me, that's what's self-evident.

    "SO, Mr Eisler, you've NO objection if I "pirate" your work...?"

    Of course I'd rather you buy a legitimate copy (I'd also rather you buy my books than borrow them from the library or from a friend). But I'm willing to accept some piracy in exchange for the overall greater distribution and profits I'm able to achieve through digital. Similarly, a brick and mortar store might accept a certain amount of shoplifting in exchange for opening a bigger store, or for a floor plan with more entrances and exits to encourage foot traffic, even if more entrances and exits might mean more pilfering.

    As for "Either copyright is good or it isn't," this is just silly. You might as well say any law, or even The Law, "is good or it isn't," when obviously the execution is going to matter at least as much as the concept. There is a tremendous breadth of possible copyright implementations, across subject matter, violative behaviors, and duration. Some combinations will be better; others, worse. For example, there might be sensible laws that could inhibit online piracy. SOPA isn't one of them.

    "Piracy… has to be stopped at some point, and we've reached that point, with The Pirate Bay, links sites, and "file-sharing" sites operating right out in the open."

    And yet somehow artists are still making money, especially if they know to fight piracy with cost and convenience.

    You can't stop online piracy any more than you can stop shoplifting, drug use, or teen sex, and you'll do more harm trying than was ever done by the thing itself.

    Carolyn said, "the ownership model you reference comes from book publishers. DRM and lendability are options set by the publisher, not Amazon." Yes -- and thanks for that clarification.

    Another Anonymous Coward said, "Obama isn't progressive enough? His administration helped pass the largest liberal agenda since the civil rights movement and arguably the New Deal."

    Other than some of his speeches, I don't see anything about Obama that I'd describe as progressive. I'm sure we won't be able to convince each other -- my tinfoil hat and hammer and sickle will likely be impediments -- but here are a couple links that will provide some of the basis for my opinion that Obama is an authoritarian much like his predecessor. the-obama-story/248890/

    And it's not just in unconstitutional wars; imprisonment of American citizens without charge, trial, or conviction; due-process free assassinations of American citizens, and unprecedented abuse of the State Secrets Privilege that leads me to conclude Obama can't be called even remotely progressive. It's on domestic policy, too. For example, he's been more aggressive on cutting Social Security even than the GOP. ts/2011/07/06/gIQA2sFO1H_story.html

    But actually, I don't care that much what you call him. Progressive, authoritarian, whatever. It's his policies that matter.

    Joh nDoe said, "I am no BO supporter, in fact quite the opposite, and I agree that sidebar was out of place."

    If it leads to too much discussion of Obama's policies at the expense of a discussion of SOPA, I'll agree with you. My intention was to show that sometimes you can tell what a politician really wants by the result he achieves -- by being open to the possibility that what you initially thought was a bad or even an insane result was in fact intended. But it might be that my example will turn out to be unduly distracting.

    Jay -- ah, you wound up making many of the same points regarding Obama. Thanks.

    Stig said, in response to an Anonymous Coward, "'Making it your own without giving credit?, That's not copying, that's plagiarism… Authors should not fear piracy. They should fear obscurity."

    Indeed, and thanks for that clarification.

    TtfnJohn, nicely said.

    Thanks again everyone for taking the time -- I always learn a lot from the discussion.


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