The Authors Guild has something of a reputation
for being anti-innovation, anti-technology, anti-future and anti-consumer. It's also anti-small author. And it appears to be flexing its lobbying muscle this week to make all of this clear. It starts off with a move to ask for a dangerous idea in copyright reform
, asking the House Judiciary Committee to implement a "notice and staydown"
provision in any revamped copyright law. Just last year we warned people
that "notice and staydown" was the way in which the legacy copyright industry extremists were looking to rebrand SOPA, and it has quickly become the preferred language
of those looking to expand copyright and to attack innovation online.
The Authors Guild letter is ridiculous beyond belief. It starts off with the usual whining about poor, poor authors unable to make a living any more.
We are writing to ask you to make certain much-needed changes to the Copyright Act to help curtail
Internet book piracy. Writers' income is in steep decline. There are many reasons for this, but a decrease
in copyright protection and the aggregate effect of Internet piracy play an important role: the entire
publishing industry loses $80 to $100 million to piracy annually, according to a 2012 estimate by the
Association of American Publishers. Meanwhile, a recent Authors Guild survey shows that approximately
67% of our authors earn less than the poverty level from their writing, with median writing-related
income at $8,000, down 24% since 2009, when e-book sales started to take off.
Books provide an essential contribution to our society. Most authors don't expect to get rich from what
they do: they write to inform, educate, and entertain, and in doing so add to our common store of
knowledge and culture. But to keep writing, they must be able to support themselves and their families.
This has become increasingly difficult in the digital age.
Notice how, like the music and movie industry's before them, the Authors Guild immediately attacks online file sharing as if it must be the cause, ignoring all possible alternatives. In the book space this is particularly ridiculous, because the lowered barriers to entry from the internet means that many authors can now be published when that wasn't a possibility before. The number of ebook authors has exploded. Perhaps -- just perhaps -- rather than blaming "piracy" for the difficulty the elite club of the Authors Guild has, they might recognize the law of supply and demand, and recognize that the greater competition means that the monetary spend on the written word has been spread more widely. That's allowed lots of brand new authors to make a living from their writing, despite being passed over by the traditional publishers.
And, yes, many do not
make a living, but that has always been the case
. I know many people who have written books, and even those who have tried to "make a career" of it. And most don't. It's just not that easy to make a living as a book writer, and it's not because of piracy. As authors like Paulo Coehlo have found
, file sharing can help
authors build a larger audience and to make more money in the long run, if they learn how to embrace their fans, rather than actively push them away, like the Authors Guild often does.
Online book piracy, once the province of shady offshore websites, has migrated to mainstream American
distribution platforms. Our "Notice and Takedown" system is completely inadequate to combat this
problem. What we need instead is a "Notice and Stay-Down" regime: once a webhost knows a work is
being infringed, it should not receive continued "safe harbor" immunity from claims of infringement
unless it takes reasonable measures to remove all copies of the same work.
As we explained last year, this is one of those ideas that copyright holders love, because they don't understand copyright law in the slightest, or how any such system would inevitably work. The main problem is that copyright is context specific
. Identical copies could be infringing or not infringing, depending on context. For example, remember when Viacom sued YouTube over video clips that Viacom itself had uploaded
? A "notice-and-staydown" provision takes away the context and with it plenty of non-infringing works as well.
The Authors Guild also argues that it's somehow easy for companies to automate all this:
ISPs, on the other hand, do have the ability to monitor piracy. Technology that can identify and filter
pirated material is now commonplace. It only makes sense, then, that ISPs should bear the burden of
limiting piracy on their sites, especially when they are profiting from the piracy and have the technology
to conduct automated searches and takedowns. Placing the burden of identifying pirated content on the
individual author, who has no ability to have any real impact on piracy, as the current regime does, makes
no sense at all. It is technology that has enabled the pirate marketplace to flourish, and it is technology
alone that has the capacity to keep it in check.
This is just wrong
on so many levels. First, if the Authors Guild is so worried about big companies, a policy like this makes them more entrenched. Even if we were to accept the Authors' Guild's faulty claim that these tools actually work (they don't), the argument that tech companies now have easy access to these tools is also not true. Big companies have access to these tools. But the next generation of startups do not. Thus, this policy would leave Amazon and Google in charge and block out any new company. Is that really
what the Authors Guild wants?
Second, these systems don't work
. We point out false takedowns on YouTube via ContentID all the time
(and frankly we don't write about most of the ones that we see). Advocating a filter that will inevitably lead to greater censorship is a ridiculous position for the Authors Guild to be taking. And, by then putting legal liability
on tech companies if they don't do this makes even worse, as it will only create more incentives for the tech companies to over censor to avoid any possible liability.
There's a reason
why the burden does not belong on the intermediaries and it's pretty straightforward: the intermediaries don't know if it's infringing
. That's something that only the copyright holders can legitimately determine. That's why the system requires notice from the copyright holders.
The purpose of copyright is to encourage the creation of new works--including and especially literary
works, which contribute so greatly to our nation's store of knowledge and culture. To continue to work
effectively, US copyright law must provide meaningful protection against the widespread online piracy
of books and journals, so that authors can afford to write them.
Actually, the purpose of copyright is to "promote the progress" of learning and education, and it's supposed to do that in two parts: one by creating incentives for new works, but also
to then benefit the public by increasing distribution of those works. And, we're already living in a golden age with more books being written and published today than ever before
. To argue that ebook piracy has somehow taken away the incentive to write... well, the evidence just suggests that's wrong. And, again, most authors never make much money at all. To complain that authors don't make enough is a different issue altogether and has little to do with copyright.
Of course, the Authors Guild didn't stop there. Also this week it went on the offense against Amazon
, asking the Justice Department to investigate Amazon for antitrust violations -- even though the DOJ already looked into Amazon's practices and found them to be fine (instead finding Apple had violated antitrust law in colluding with publishers to raise ebook prices). But, don't mind the details, the Authors Guild is sure Amazon is to blame
. According to the Authors Guild, the fact that consumers
benefit from lower book prices shouldn't let Amazon off the hook.
Without commenting on the outcome of the Apple case, or the facts that led the majority to its conclusion, we'd like to point out the long-term dangers of interpreting antitrust law solely to favor low book prices over a thriving competitive and robust literary marketplace.
Yes, how dare you focus on the actual benefits to consumers, DOJ!
A related letter
from "Authors United," again seems to attack Amazon for daring to offer good prices to consumers, as if that's some sort of horrible antitrust violation.
Personally, I think it would be great if there were more competition in the ebook space, though we have seen it start to expand, with Apple, Google and others entering the market. But, the reason those companies (despite their own market power) have had trouble making a real dent in the market is because people really like Amazon
. Amazon does a pretty good job making it easy and convenient to buy ebooks, to read reviews, to find similar works, and -- of course -- to read the ebooks as well. It would be great if there was more competition -- and that it would lead to lower prices, better features and less DRM. I'd be all for it. But that's not what the Authors Guild is arguing for. They don't want an open marketplace. They don't want competition. They want higher prices and less competition
from the riff raff authors who aren't signed to big publishers and aren't members of the Authors Guild.
It's not hard to see the consistent logic behind all of this. The Authors Guild doesn't like the internet at all. It used to have a good thing in the old days, pre-internet. It could keep out the riff raff, anoint authors as the chosen ones, and make money off of those few giant authors. These days it's much harder and there is a real marketplace. The Authors Guild can't compete, so it runs to the government to "fix" things. It attacks internet companies like Google and Amazon not because they're doing anything unfair, but because they're actually bringing real market economics to the market for books. And the Authors Guild can't allow that to to continue.