Public Interest Authorship



Paywalls and the Logic of Perfect Control

I’ve just recently discovered and become a reader of Scratch, “a digital magazine about the relationship between writing, money, and life.” Now, I don’t think I agree with much of the editorial perspective, but I care a lot about many of the motivating questions (e.g., how do/should writers get paid?), so thoughtful reflections on the subject, helpfully compiled in one place, make for a useful resource and are worth the $20/year subscription.

In any case, Scratch’s not-paywalled blog recently posted a piece called “Paywall Parkour: How to Rip Off Your Friends,” in which Porter Anderson argues that paywall jumping is a moral failing. Now, I’m hardly going to defend paywall jumping writ large—I think the decision to erect a paywall is firmly within a given business’ rights, and rightly so (although I do take issue with the mechanism by which the DMCA enforces aspects of those rights).

But Anderson’s vision is still troubling to me (even beyond the now-standard use of language like “stealing” and even “robbing”[1]). The problem is that Anderson has bought into what James Boyle calls the “logic of perfect control”[2] hook, line, and sinker. Anderson writes:

Internet-based media should be the perfect answer to the imperfection of print newspapers, which can be passed around free. The technical capability to wall off one’s offerings, perhaps metering how many free-trial samples each user can receive, should be win-win-win for media, their writers, and their readers.

Emphasis added. Now, I admit that I’m not the sharpest when it comes to picking up on written irony, but I’ve read this through a number of times now and I’m fairly sure that this was written straight. Is this a commonly held belief among writers, that the portability and reusability of physical copies is a flaw?

Read the rest of this entry »


Are authors special snowflakes? A preview of what I’m working on

Watch this video, in which Roxana Robinson, president of the Authors Guild, rejects the label of “special snowflake.”

It’s worth it just for the sparring at the end. “Don’t you call me a special snowflake!,” is going straight into my handbook of classic rejoinders.

In any case, Robinson is right that the term “special snowflake” is being used to demean, but it cuts to the heart of what a lot of talk is currently about: are books different from other consumer products? Do books and their authors deserve special treatment?

While these questions are implicitly addressed all over the place—for instance, in the video above—they’re difficult enough (and, I think, the right answers nuanced enough) so as to deserve a more thoughtful unpacking. I’ve got one in the works, stay tuned.


Young people these days!

Young people are failing to shoulder the weight of their cultural inheritance. They have the attention spans of gnats, they don’t pay for anything (which would be a feat in any case, because they certainly don’t work), their tastes are vapid, and I wouldn’t be surprised to learn that they’re all mostly illiterate. Get off my lawn!

I’m sure every generation endures this kind of bunk. It’s a rite of passage. But lest we all start believing the allegations by osmosis, a now several-months-old Pew Research study on public library use is making the rounds to chasten the millennials’ detractors, at least with regard to the “kids these days don’t read” charge. There’s lots of good information in there (especially for library lovers), but here’s the summary of the finding on book reading:

Millennials are quite similar to their elders when it comes to the amount of book reading they do, but young adults are more likely to have read a book in the past 12 months. Some 43% report reading a book—in any format—on a daily basis, a rate similar to older adults. Overall, 88% of Americans under 30 read a book in the past year, compared with 79% of those age 30 and older. Young adults have caught up to those in their thirties and forties in e-reading, with 37% of adults ages 18-29 reporting that they have read an e-book in the past year.

Take a gander at the summary or, if you’ve got a few extra minutes, flip through the whole report (PDF).


Internet Slowdown Day

Today, a number of prominent websites are “slowing down” by prominently featuring a persistent loading wheel. It’s an illustration of how the web might look without net neutrality, the principle that internet service should allow equal access to the whole network. The way things are looking in the courts, in Congress, and at the FCC, net neutrality won’t be sticking around without a little bit effort from those of us who care about it.

While today’s big-name participants are largely tech companies (which makes sense; financially, they have the most to lose), net neutrality matters just as much to the little guy.

The internet is empowering for voices that want to be heard precisely because it largely does away with the kind of scarcity that restricts and slows access to physical books, records, videos, etc.

Which isn’t to say that that authors aren’t completely free from scarcity online. Indeed, bandwidth, electricity, processing power, and digital storage are all finite. But their abundance relative to the resources needed to, say, store a book and distribute it all around the world functionally does away with limitations.

How cool is that?

Today’s net isn’t strictly speaking neutral. But it’s neutral enough that it preserves this kind of opportunity for authors. That’s all subject to change if we allow service providers to restrict (or increase) bandwidth based on the speaker and what it can afford to pay.

So let’s slow down today and hope that we don’t have to do so tomorrow.


Blog Comments

I don’t have access to any kind of analytics for this humble blog and so have no idea whether or not it has any kind of stable [human] readership. For what it’s worth, robots appear to love me though—so much so that I’ve been completely inundated in their spammy comments.

So comments are now turned off. To my knowledge, I’ve never received a comment that wasn’t spam, so the effect of the change should be negligible. Still, should anyone wish to comment on anything, I’d be happy to hear and repost your thoughts—you can reach me at mikewolfe@law.berkeley.edu.

Thanks!


Poetry, short fiction, and print-only journals

Two years ago this November, my then-fiancée, Lara, accepted her first publication offer for a short story. A few months later, her work appeared in the pages of The Greensboro Review, a semiannual literary journal associated with UNC Greensboro’s MFA program.

Lara mugs with her all-too-rare paper copy of the Greensboro Review

For Lara, the experience was rewarding. From editing through publication, TGR was great to work with and provided welcome insight into her story. And having that paper copy to keep as a memento is a treat. But it comes with a downside: the Greensboro Review is a print-only publication. Anyone wanting to read Lara’s first story would have to track down a copy of Issue 93—not something you’re likely to stumble across in your local bookstore or library.

For many authors of short fiction and poetry, being read and being online are increasingly interwoven. These works are discovered and shared on the web. If a print subscriber enjoyed the story and wanted to pass it on, they wouldn’t even have a good link to send to a friend. There’s no amazon listing, no worldcat page, no easy way to track down a copy—all that’s available is the journal’s homepage and whatever paper copies may exist out in the wild.

Over at H_NGM_N Books, poet Mike Puican deals with this problem head-on, giving his reasons why he no longer submits to print-only journals. Puican starts from the premise that he wants his work to be read:

Whenever I have a poem published, I like to let people know about it. . . . If that poem is in a print-only journal, it is, unfortunately, not likely those people will buy it from a local bookstore or a website that carries it. If it is online, not only do I share the news of the publication, I share a link to the poem. Now everyone has the chance to read it. And it’s very easy for them, if they feel so inclined, to “like” the poem, comment on it and share it with their networks.

Puican is also concerned about making sure that his works last. Periodicals are transient and go out of print quickly, but a digital presence can be much hardier. “This may be the first time in history”, he writes, “that writers don’t have to worry about their work disappearing from public view.”

The good news for writers of paper-bound pieces is that small, print-only journals are usually author-friendly when it comes to rights, usually asking for little more than the right of first publication and perhaps a brief embargo (of course, I haven’t read your contract and this blog is never legal advice). When the journal takes only the rights it needs, the author is left free to take their work elsewhere. It’s not necessarily easy for these authors to get their works online—building websites, typesetting work, and ensuring that it can all be easily found are not trivial tasks. But it’s a huge help that the option is there.

Much easier, in any case, to start with a publication that promises some degree of lasting accessibility from the get-go. In this regard, Puican’s take home point sounds right to me, where he writes:

I’m not one of those saying print is dead and everything should now be online. All I’m saying is that the Internet has opened opportunities for poets and that we should take advantage of them to get our work out to the world.

For now, Lara’s first story is largely unavailable. But it won’t stay that way for long: the Greensboro Review left Lara with the rights to the story and with a little bit of elbow grease we’ll get it online, where it stands a much greater chance of being read.


Opening legal education: New coursebook from Duke’s CSPD

Textbooks are essential instructional tools but they’re not without problems. Most familiar to students is the problem of cost: textbook prices have been significantly outstripping inflation for some time, rising 82% between 2003 and 2013 and giving rise to some fairly terrifying charts. But there’s also the issue of tailoring. There might not be a textbook that’s a perfect match for a given instructor’s needs, but the traditional model requires students to purchase material their instructors may have no interest in teaching.

While authors from a variety of fields are making strides to bring accessible and open educational resources into the mainstream, legal education is particularly poised for change.

The most recent development comes from the Duke Center for the Study of the Public Domain, where law professors James Boyle and Jennifer Jenkins have published an excellent[1] open casebook and statutory supplement, Intellectual Property: Law & the Information Society. The first in a series the Center plans on publishing, the book is now available as a free download or for an affordable price in print.

As intellectual property scholars with a more-than-passing familiarity with open licensing, Boyle and Jenkins are eager to explain how they came to publish an open coursebook. Their FAQ is worth reading for anyone wondering, for instance, whether they are “against professors who want to be paid for their work and time” or why they “have a paper version at all.

Publishing under a Creative Commons license, Boyle and Jenkins fully expect that others will modify the book in order to make it work for their needs. They write that “[t]he book is intended to be a textbook for the basic Intellectual Property class, but because it is an open coursebook, which can be freely edited and customized, it is also suitable for an undergraduate class, or for a business, library studies, communications or other graduate school class.”

While traditional publishers have been exploring digital distribution, they haven’t worked to pass the benefits onto students. Aspen, a Wolters Kluwer imprint, made headlines earlier this year when it announced plans to use its heavily-DRMed (and still quite expensive) digital editions to hamstring the used textbook market. It is increasingly clear that the promise of digital publishing is more likely to be realized by committed authors rather than by traditional publishers.

And the launch of the Duke open casebook series is only the latest effort in a growing trend in legal education whereby textbook authors are taking advantage of digital distribution to increase the accessibility and change the nature of course materials. For instance, the Harvard Law School Library and the Berkman Center for Internet and Society have built a textbook creation service, H20, that allows users to develop, remix, and share custom course materials based on CC-licensed source material.

A slightly different approach to some of the same problems is exemplified by Semaphore Press, a for-profit publisher of law school casebooks that considers accessibility to be an essential part of it mission. I recently had the chance to talk on camera with Lydia Loren, a professor at Lewis & Clark Law School and Semaphore Press co-founder. Semaphore charges $30 for a download of any of its DRM-free casebooks, but also provides a pay-what-you-want option to ensure that students have access to their assigned texts.

Boyle and Jenkins write that “Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.” In tandem with these other efforts and in light of the growing consensus that traditional textbook publishing could better fulfill its educational purpose, it might be enough to make a difference.


Intellectual Property: Law & the Information Society is available as a free download or for an affordable price in print.


[1] Full disclosure: my own legal education benefited from the beta version of this coursebook, and from the instruction of both Professors Boyle and Jenkins.


Against Spain’s Google Tax

Spain thinks that the internet doesn’t work for newspapers, and thinks it can solve that problem with legislation that would grant copyright holders an inalienable right to receive royalties from content aggregators. The bill has already passed the lower house of the Spanish legislature and is dangerously close to becoming law.

Here’s the problem: an inalienable right to payment might work for those authors who want to be paid, but it would be deeply problematic for those who place more importance on being read.

In general, copyright law has proven largely agnostic regarding the tension between the interests of those who want to make their works as widely available as possible (let’s call them “sharers”) and those who want to limit access in order to maintain profits (“sellers”). In general, sharers can use copyleft licensing to ensure that copyright is no barrier to distribution, while sellers can (at least in theory) enforce their copyrights against infringers.

But while copyleft licenses have worked admirably for sharers, enforcement efforts haven’t proven to be any sort of cure-all for sellers. Indeed, sometimes, as with news, infringement per se isn’t even perceived as the source of the problem. Instead, noninfringing linking has attracted the ire of many rightsholders, particularly where, as with news, headlines and snippets (the argument goes) might satisfy a user’s curiosity on a given subject.

So called “Google Taxes”[1] have been variously proposed and adopted in a number of jurisdictions to make these aggregators pay royalties to the rightsholders to which they link. There are reasons to be dubious of this move wherever it’s implemented, but let’s set those aside for now. Superficially, aggregator taxes work toward solving problems for sellers at the expense of internet intermediaries. While we should be concerned about the effects on intermediaries [2], from a sharer’s perspective they don’t necessarily pose much of a direct problem.

The Spanish approach isn’t just for sellers though. By making the right to a royalty inalienable, it disallows sharers from granting aggregators the right to link to their work royalty-free. It’s a hatchet in the back of copyleft licensing, undercutting the internet’s effectiveness at furthering the interests of sharers in order to shield sellers.

Advocates for the scheme will protest that some measure of inalienability is necessary, otherwise it will prove as ineffective as the approach in Germany, which ultimately resulted in newspapers renouncing their right to be compensated in order to avoid being shutout from aggregation.

All of which suggests that the discoverability fostered by indexing and aggregation is worth far more to sellers than they claim—almost certainly a net benefit rather than a net drain.

So if aggregation isn’t really what’s hurting the news industry, why “tax” it? Especially when the result is a disservice to authors who write primarily to be read?

There isn’t a satisfactory answer unless you’re likely to be persuaded by yet another iteration on “if value, then right.” With real harms and dubious benefits, we can only hope that the Spanish Senate opts to nip this particular legal innovation in the bud.


[1] Note that there is another problem here: large internet companies rarely have physical presences in most countries, but might nonetheless do substantial digital business across borders. The question of how and where such businesses should be taxed is an important public policy issue and the source of much frustration around the word. However, the general taxation question, which is also often called a “Google Tax,” is a little off topic here.

[2] Most importantly, there’s obvious benefit to indexing and aggregation so steps that would discourage it should not be taken likely. It’s also important to remember that not all aggregators have the resources of, say, Google, so mandatory payment schemes might counterintuitively serve to protect incumbents from competitors.


Copyright’s Qualitative Project: A Response to IPSC

This last Thursday and Friday I had the opportunity to attend my first Intellectual Property Scholars Conference hosted here at Berkeley Law.

The phrase that gets thrown around to describe the event is that it’s like scholarly speed dating. Lots of academics (~200?) with shared interests taking turns presenting papers and abstracts in twenty minute blocks. Fantastic fun if intellectual property scholarship gets you going.

Given the staggering amount of scholarship, it can hard to process and respond to so much. But there was one recurring line of reasoning that struck me as both powerful and deeply problematic, so I’m going to address it over a quick series of posts here.

At least two (maybe two and a half) of the presentations I attended were focused on copyright’s qualitative project, that is, the law’s utility in creating works of a certain kind or caliber. For many scholars this is an area to tread lightly, as it takes a certain amount of chutzpah to take a normative stand on what culture should look like and how the law can manipulate creators into making what we’d like to see made.

As is probably obvious, and for reasons I’ll get into shortly, I’m a skeptic of this project. But I’m also sensitive to its descriptive corollary, that is, the importance of taking account of the fact that copyright’s contours might affect the nature of what gets made regardless of our intentions. Pretending that it doesn’t serves no one, but without a normative agenda its hard to unpack what we should make of the observation.

I’ll jump into specific scholars and their ideas in future posts, but for now I’m content just to present the basic line of reasoning.

It’s an uncomfortable idea at the outset, but it’s one that’s well familiar in patent law, where the feeling that the substance of the law plays a direct role in shaping the character of innovation for better or for worse is more widely shared.

So if patent law is affirmative innovation policy and we’re OK with its qualitative project, does it make sense to feel the same way about copyright? I don’t think so, but I’m going to keep working through it, starting with the paper Joseph Fishman presented at IPSC, “Creating Around Copyright.” (PDF)


Notes on a Paper

This is a little ironic, but I hate to draw any attention to anything I’ve written for fear that someone might actually read it. But there’s no avoiding it: the Duke Law and Technology Review recently published a paper of mine. It’s called The Apple E-Book Agreement and Ruinous Competition: Are E-Goods Different for Antitrust Purposes? and you can read it here if that sounds interesting to you.

I bring it up to relate a few criticisms of the paper and my responses by way of my friend Joel Irving. His perspective is that of a librarian/archivist rather than an attorney or legal scholar, so I particularly enjoyed hearing his thoughts. Anyhow, his thoughts are below and my responses follow.

Joel:[I have] minor quibbles with where you said that digital goods do not degrade, and that the fidelity of digital media renders them accessible to future generations. Because of course of bitrot and other ways that digital media does degrade, and that media being accessible requires using some kind of archival format that continues to have software developed to read them, as opposed to proprietary stuff.

I made the point in the context of discussing some of the differences between the markets for digital and physical wares, but Joel is absolutely right to point out that it’s a mistake to treat digital preservation as a foregone conclusion.

A more nuanced (and more accurate) take is that digital storage of cultural heritage items offers incredible possibilities for longterm, high-fidelity preservation. However, that sunny future is entirely dependent on the tireless efforts of committed archivists. Otherwise, bitrot, format obsolescence, and old-fashioned catastrophe will take their toll. Preservation is not something to be taken for granted, and it was my error to gloss over the considerable effort it takes to make sure that culture lasts longer than a generation.

Joel: You don’t mention hardware in discussing Amazon’s monopsony. Maybe this is just the U.S., but I feel like the Kindle has the largest share of physical ereaders, and ease of delivery combined with a proprietary format makes leaving Amazon’s platform, either to buy a book elsewhere or get a new device, difficult.

Now, I don’t perform an analysis on Amazon’s monopsony power in my paper—it’s a little ancillary to my main point. Amazon certainly has market power, and it could very well have a monopsony in the ebook market. It will take a fair amount to persuade me on that point largely because I think entry costs and scalability undermine Amazon’s grip on electronic bookbuying/selling. But I admit that this is take is largely conjecture and subject to correction.

In any case, a full analysis of Amazon’s monopsony power will have to take account of its grip on ereading hardware, its use of DRM, and the resulting switching costs suffered by consumers. Others have commented a little bit about how DRM plays into market power (Cory Doctorow recently gave a talk on the subject here and the EFF’s Parker Higgins wrote about it here) and I largely agree with their commentary on the matter, though I think they might overstate the role the DMCA anticircumvention measures play. I’m no § 1201 apologist (quite the opposite, in fact), I’m just not quite so sure that the law is the driving force behind the state of market.

Joel:Where you say that the public domain may eventually become a [competitive] threat [to contemporary content]: this is something that i’ve been thinking about lately, more because of my own interest in older stuff, and how that is so commonly at odds with present day interests, and why people want latest releases and such so badly. Even when things are based on an older source, people want what’s new, not merely the novelty of something they didn’t know before. Some places do a decent business in reissues and rereleases, but they never become real blockbusters.

This is also a fair criticism. There is value to novelty, perhaps more so now than ever before. I don’t pretend to have deep insight into the sociology of media consumption, but the observation that people consume what’s new in part because it’s new certainly rings true with experience. The strength of the competitive effect an enlarged and accessible public domain will have is absolutely subject to how much people value novelty.

Joel and I are continuing to talk about novelty and popularity and I think the topic is far more meaningful to the culture economy than just this discrete point about competition from the public domain. So maybe I’ll return to the topic here shortly.