Public Interest Authorship



Inequality and the Rise of the Antifree

In the aftermath of the Great Recession and Occupy Wall Street, it’s hard to ignore the role that inequality plays in the creative ecosystem. As many continue to bemoan the pitiful state of remuneration for creative pursuits (documented, for instance, in the admittedly limited ALCS author earnings survey), should we be asking whether there’s enough money in the enterprise, or should we more concerned about where the money already in the system is going? Put another way, are the current problems with author remuneration to blame on the total size of the market, or on how and where existing returns are distributed?

I don’t mean to create a false dichotomy—obviously, one could easily answer “both!”—but my feeling is that taking the time to apportion responsibility has a great deal of relevance to what our policy prescriptions should be (assuming, of course, that author remuneration is your primary policy concern). My tentative hypothesis is that, by assuming the problem of author remuneration is primarily one of total market size, too many well-intentioned individuals turn to copyright-based solutions (extending term lengths, “notice and staydown,” etc, etc.) for what, at core, has not traditionally been a copyright problem.

Quite some time ago now, the editors at n+1 did a great job of capturing the spirit of current backlash against the current state of affairs in “The Free and the Antifree.” The authors trace the rise of “the free”—that is, ostensibly, the free culture movement—and the subsequent appearance of its antithesis, the “antifree.” In this dialectic, the free culture movement brought about crisis by undermining writers’ abilities to get paid. n+1 is chiming in as a voice of the “antifree,” what they’re calling those who want to see culture-making be a paid activity. They write:

In the argument between the free and the antifree, we’re with the antifree. Across a whole range of issues, a simple defense of intellectual property is right now a rebuke to the corporations, not a sop to them. “Show me the money” is a necessary slogan at a time when giant firms leverage a million retirement accounts for a split-second gain in the ominously named dark pools of the financial world.

(emphasis added.) This argument elides the important distinction between the existence/strength of intellectual property rights and the mechanics of being paid.

For better or for worse, the copyright approach to author remuneration is primarily laissez-faire.[1] The right to exclude others from your work makes it possible for you to reap the returns the work receives on the market. And so it turns out that, if the prospect of unrewarded labor is what concerns you, copyright is a particularly perverse system to which to turn. Copyright never guaranteed a wage, it merely provided a point of entry into a market.

And exclusivity (read: “copyright”) does not create demand and markets aren’t just. Commercial success is a poor proxy for impact, significance, or quality. If we were to reckon success by dollars, we’d find that most cultural output is loss, not worth the energy expended on it and this would be true regardless of the porousness of the prevailing copyright regime. By one 2007 estimate, seven out of eight traditionally published books are losers.

And of those works that become winners, it’s hard to divine any particular sense of deservedness. Putting aside his own copyright issues, Robin Thicke became a best-selling songwriter—moving more than 15 million copies of his single “Blurred Lines” and topping the charts in more than a dozen countries—after having the good fortune to be high in a recording studio with Pharrell Williams.

One thing we know for sure is that, whatever the state of author remuneration generally, today’s winners are winning bigger than ever before. James Patterson (with the help of his team), apparently, accounts for one out of every seventeen hardcover books sold in the United States, and Forbes has his annual earnings regularly approaching $100 million. If you add in the sales of other megahits, there isn’t much of a market left for those titles are that aren’t blockbusters.

There are plenty of reasons why we would expect to see extraordinary successes in the present market for cultural goods. First and foremost, that’s increasingly how businesses structure their activity—just ask Anita Elberse, who makes a compelling case for why the blockbuster model is just smart business.

Beyond that, a globalized cultural economy has greatly extended the horizon for successes. Hollywood now makes some 70% of its revenue from international markets. And mass culture makes for big returns: low (and still dropping) marginal costs of production means that, once a firm’s initial investment in production is paid off, an enviable amount of any given sale manifests as profit. The larger the potential market, the greater the capacity of the firm to make the most of these tremendous margins.

Even Taylor Swift, who was again in the headlines for shaming Apple into paying artists during the free trial period of its new music service, knows she doesn’t need help, writing that, “This is not about me. Thankfully I am on my fifth album and can support myself, my band, crew, and entire management team by playing live shows. This is about the new artist or band that has just released their first single and will not be paid for its success.” Sadly, she’s among the smallest handful of the one percent of artists for whom three months of streaming royalties from a single service would actually mean real money—while she’s right that Apple should have been paying those royalties, her hypothetical “new artist” would have to be extraordinarily lucky to get a sandwich out of the added income.

Looking back on the markets of yesteryear, it can seem like our system of cultural production superficially resembled something that seemed fair enough to labor. When the system worked best, remuneration-wise, it essentially did so using intermediaries as venture capitalists. Publishers, labels, and studios pooled risky investments in works of authorship in order to profit from the blockbuster success of a just a few titles. Chances were always high that your book/album/film would be a commercial dud, but you could still be bankrolled on the substantial earnings of one of your peers.

Now, this doesn’t mean that 20th century cultural production was utopic. Intermediaries wouldn’t invest in everything under the sun and there’s no doubt that, by serving as gatekeepers, they snuffed out the worthy hopes of many talented, hardworking creators. And while it’s possible that the firms involved have since gotten more hard-nosed, potential commercial prospects have always been the most important determinant of up-front remuneration. Such is business.

Perhaps the lesson here is that, absent the real support of institutional intermediaries, markets for copyrighted goods don’t provide the financial foundation most creators need to ply their craft. At least, they didn’t seem to in the pre-digital age, and they most certainly don’t now. As authorship becomes increasingly disintermediated, creators are made to hitch their wagons to their own stars, which, as we’ve seen, most often plummet straight back to earth. This isn’t just happening with creative professions, either: in the post-recession world, making ends meet without institutional support is the new normal. Welcome to the Gig Economy.

This last point raises an important question: is what’s happening to authors terribly different to what’s happening to the rest of the world? Looking at book publishing, the story sure seems awfully familiar. Industry employment is down and production rests on backs of contractors from the precariat, while industry profits are up and the 1% are realizing unprecedented returns. As a millennial, that sounds like business as normal regardless of the industry. No wonder our cultural economy is plagued by inequality and financial instability when the rest of our economy is as well.

All of which is a convoluted and overly wordy way of saying that most proposals for expanded/strengthened copyright[2] are unlikely to do much to remedy the reality of author remuneration for most people. We should know better by now than to think that a rising tide lifts all boats—peripheral expansions of copyright might increase the bottom lines of the lottery winners already astride the world, but they’re hardly likely to make a difference for those authors whose plights are most often invoked in debates about intellectual property. For them, we need support that isn’t completely tethered to the market, institutions that have a mission beyond profit, and collaboration between authors. We need a system that resists providing outsized rewards to a select few in order to better support the creative labors of many. That might be a tall order, but who ever said change was easy?


[1] I think it’s fair to say that the core of the regime envisioned by U.S. copyright law is market-driven, but certainly not all facets of the law are so easily explained—Section 203 comes to mind. On this score, look for forthcoming work from Berkeley Law’s current Microsoft Fellow Kevin Hickey that promises to unpack some of Copyright’s more paternalistic turns.

[2] Now, not all proposals here are created equal. For instance, many would like to see terrestrial radio play royalties to owners of sound recording rights the way they presently pay owners of music composition rights. In many respects the present, bewildering situation here is an historical accident, and it seems fairly straightforward to most people that radio play is something for which recording artists deserve compensation. No argument here.


Getting right into the Thicke of it

The Thicke case has me thinking about one my favorite/least favorite parts of copyright law: music copyright. There’s been much made of the fact that the Gaye copyright was limited to the sheet music. Now, I think that holding was probably right, resting as it does on the 1909 Act. But the way that music compositions and sound recordings are treated in copyright law has troubled me for some time. All this kerfuffle over the Thicke trial led me to revisit a paper I started some time ago but never managed to finish, in which I argue against the dual-copyright approach to music.

The rest of this post is just an extended excerpt, so read on only if you’re really into the more tortured details of music copyright. Read the rest of this entry »


Rights Management and Preservation: What Authors Can do

There’s been lots of good (and/or harrowing) stuff going around about the perils of preservation on the web. Jill Lepore’s examination of the Internet Archive in the New Yorker is at the top of the pile, followed by Andy Baio’s “Never Trust a Corporation to do a Library’s Job,” but these only capture the full story when complemented by freelance writer Carter Maness’ observation that his portfolio has all but evaporated from the web as sites have shuttered, restructured, or otherwise ditched their archives. Carter writes:

We assume everything we publish online will be preserved. But websites that pay for writing are businesses. They get sold, forgotten and broken. Eventually, someone flips the switch and pulls it all down. Hosting charges are eliminated, and domain names slip quietly back into the pool. What’s left behind once the cache clears?

This lesson isn’t a new one. As I’ve noted before, film studios’ purposeful destruction of archives is partly responsible for the fact that that the vast majority of American silent film has been deemed “completely lost.” Never trust a corporation to do a library’s job, indeed.

But even the most risk-tolerant and passionate librarians and archivists aren’t positioned to save everything before it reaches the great recycle bin in the cloud, or the more literal one at the book pulping plant. With a little bit of copyright savvy, authors themselves can have a vital role in seeing that their works don’t simply disappear.

Of course, authors are not always the most committed archivists. There is a long and storied history of creators disavowing or simply giving up on their works. Kafka famously wanted all his unpublished writings (that is, most of his writings) burned, and he’s hardly alone. And with today’s announcement of the publication of a long-buried Harper Lee novel, there’s already speculation that it’s being published against her will. Now, this is all eminently understandable—who would want to live in the shadow of work they don’t themselves appreciate or believe in?

But it seems far more common that authors are in fact the best advocates for what they’ve made, and are the most committed to seeing that their work remains available. And, fortunately, these authors are often solidly positioned to ensure that things don’t disappear. In general, there are three ways forward:

  1. Keeping rights in the first place. Not every publisher needs copyright or an exclusive license in order to make something available. Often, and especially for shorter works on the internet, an embargo period during which the publisher has exclusivity does just as well. Then, when the publisher disappears, the author can be sure the work is mirrored elsewhere.
  2. Reverting rights. For book-length written works, rights reversion clauses are standard. Wording and substance can change, but the general notion is that these require that publishers return rights to books they’re no longer printing or—in the age of the ebook—selling. Wearing my other hat as executive director of Authors Alliance, I should note that AA has a comprehensive guide to rights reversion as a tool for making a work more available coming out pretty shortly.
  3. Terminating transfers. So long as a work isn’t “made for hire,” authors can get their rights back 35 years after signing them away. Actually making this happen is highly technical and, frankly, cost prohibitive for most short works. There are a number of good guides that go through some of the details of this process, including those made by the Future of Music Coalition and the Authors Guild.

With rights in hand, works can be posted in a repository under a public license, submitted to archiving efforts like the internet archive, republished by another outlet, or compiled and released in a new form. And, even where none of the above apply, there’s a strong argument that fair use would allow authors to resurrect at least some unavailable works, in much the same way that many believe fair use can help libraries and archives counteract the orphan works problem (note: this is not legal advice!).

Admittedly, keeping track of rights isn’t easy, particularly not for people who are publishing literally thousands of pieces. But negotiating contracts and then saving them can pay dividends later on when rights issues can prove impportant


Michael Eisen on OA

During this year’s Open Access Week I had the chance to sit down with Berkeley professor, OA stalwart, and PLOS cofounder Michael Eisen to talk a bit about OA as an authors’ issue. The video is now out, so give it a gander.


Back to Nature

Michael Eisen sums up the problem with Nature’s convoluted new free access policy:

First we had “open access” in which people can download, read, reuse and redistribute content. Then we had “public access” in which people can download and read content. Now we have “free access” in which people can read for free in a proprietary browser, and can’t download or print.

Is the new Nature policy, which allows authorized readers to create links to heavily-DRMed but full-text copies of articles, a step forward in access to knowledge? I’m skeptical. With so many restrictions, it makes the informal exchange of PDF copies look like an enviable system.


More on music, the long tail, and streaming

There’s lots of other exciting things happening in the field of public interest authorship. Professor Pamela Samuelson and I have a post up on the Authors Alliance blog on the GSU case and there’s a House Judiciary Committee hearing on the topic of education and fair use happening today at noon (Pacific Time). These are important topics, directly on point for this blog’s theme, and I’ll get back to them shortly. But for right now, let’s talk more about the music business.

First, and I think this should be obvious, but music is as related to the public interest as any other kind of art of culture. Musicians can easily be “public interest authors” who prioritize creating a shared culture. So I’d argue the issue of how musicians get paid isn’t entirely off-topic. In any case, this is my blog so I don’t know why I’m trying to justify myself.

The other day I lamented that streaming dollars seem to have a tendency to float to the top, perhaps exacerbating the tendency for the most popular artists to capture the bulk of revenues in the music economy. There have been some extra developments in this space, particularly with Steve Albini giving an address in which he opines that the digital distribution of music has been a tremendously positive thing for musicians and consumers. It’s heartening to see a take on digital distribution that isn’t doom-and-gloom (and I agree with many of the particulars of his points, particularly regarding the orphan works problem.) While I’m inclined to also be thrilled at the sheer availability of music that would be rotting unheard (or unmade!) in the absence of the internet, I don’t think this observation makes the mechanics of streaming royalties irrelevant. Let’s be thrilled with what the internet has made possible for the distribution of knowledge and culture, and let’s also care about the mechanics of how these things work.

Now, it feels to me (more on this forthcoming) that there is a large group of commentators whose critique of the knowledge/culture economy is directed toward the difficulties of making a simple living. I think we can debate whether “the Progress of Science” is better served by windfalls granted to a small handful of apparent lottery winners, or by livable incomes earned by a professional class of creators. But let’s go ahead and do the more human thing and favor the less exploitative option. Let’s assume that steady incomes trump shockingly large windfalls. Let’s also assume that what Taylor Swift considers a pittance (i.e., $500,000–$2,000,000 per streaming service per year) is actually a windfall. Given that the median household income in the United States in 2012 was ~$51,371 (PDF), I think this is fair.

Reading one idea on how streaming royalties could better foster payments to nonsuperstars (i.e., by apportioning royalties according to subscribers rather than to spins), I came up with my own idea.

Decreasing marginal royalty rates.

Sharply increase the royalties for the first however many spins, and let them drop off with increasing numbers.

Aside from my unamerican tendency to be skeptical of windfalls, what’s wrong with this plan?


Streaming Royalties, Taylor Swift, Inequality

If it seems like I only post when Taylor Swift has something to say, well, maybe so. Taylor just has that sort of magnetism!

In any case, the net’s been all aflutter over Swift’s decision to pull her music from the streaming service Spotify for the release of her new album. Is she behind the times? Is she a brave voice for artists’ rights? Does Spotify pay hit artists a pittance, or is Taylor Swift raking in the millions?

My first reaction is that the coverage has been terribly overblown. Swift, her label, her team, have almost certainly crunched the numbers and taken the path they expect will be most profitable. This doesn’t seem insidious or inspiring—looks like business to me.

But watching the war of words between streaming services and artists who feel ripped off by streaming services, I was struck by one way in which the business model of streaming could tend to exacerbate the winner-take-all structure of the culture industry, as compared to album sales.

Streaming breaks down barriers to listening to music that makes popular music available and enticing to a larger audience than ever before. Consumers who, in the past, might have directed their music consumption entirely to a smaller catalog with fewer chart-toppers can now also play the new Pharrell track when it suits their mood.

Anecdotally, this mirrors how I behave as a consumer. As a purchaser of new albums, the relatively high purchase price has always directed my spending toward the music I most wanted. This meant that, aside from a small handful of CDs, none of my music spending went toward the most popular music.

Today, I use a paid streaming service. I still buy albums (admittedly, fewer than I used to), and my purchasing patterns are still more or less the same in terms of what kinds of albums I buy. But when I stream music, I’m far more likely to consume contemporary popular hits than when purchasing. I’ve definitely streamed Taylor Swift and Jay-Z, along with all sorts of hit artists from the last three decades whose records I would never think to buy unless I found them in the bargain bin at a thrift store.

What this means is that some of my music dollars, and the dollars of people like me, are being diverted toward the coffers of the ultra-successful in ways they weren’t before. In some sense, I imagine this would mean that popular artists are more popular than before, even if small artists are just as popular as ever (does that make sense?). My concern is not really about what this means for the total size of the pie, but rather about how it’s divvied up. It seems eminently possible that the streaming economy is one where small and indie artists take a smaller share just by virtue of how consumer behavior might be altered when the act of consumption is distinct from the act of paying.

People will continue to argue about to whether the sky is rising or falling. But whether Spotify—one streaming service of many—is paying Taylor Swift $500,000 or $2,000,000 per year seems beside the point. There’s always money available for those at the top of the pyramid, I’d prefer to know about how things look closer to the bottom.


update: 2014-11-13 15:37

Lara writes in to disagree. At the all-you-can-eat-of-whatever-you-can-find buffet of music streaming, why should we believe that gourmands are adding funnel cake to their plates at a greater rate than the fast food crowd is sampling the caviar?

She’s right: I don’t know. This post was rank speculation pulled from an anecdote. The hope would be that near-universal access would grow interest in the long tail, but I don’t know that this is the case. Without question, the accessibility provided by broad-based streaming services is good news for the discoverability of long tail works and those who would access them, but how that translates into payments is another question entirely.


The Authors Guild, Authors United, Amazon, and the DOJ

Authors United has been broadcasting its intention to get the DOJ to investigate Amazon for possible antitrust violations for at least the week or two.

Now the Authors Guild is fessing up that the rally-the-DOJ approach is one that they’ve been working on for some time, albeit on the sly. The Wall Street Journal appears to have outed their strategy, leading to the Authors Guild announcement. Now, I don’t have a Wall Street Journal account and can’t read its scoop, but this is what I gather. I’m sure I could get access through the Berkeley Library, but I’ll work on figuring that out later.

Perhaps it’s not too surprising that the two organizations are on parallel tracks, as “[t]he Guild has been working closely with the grassroots group Authors United” in its efforts on the Amazon Question.

I think I’ve mentioned elsewhere that I’m unconvinced about the merits of an antitrust claim against Amazon. Given the state of the law and the inaction of the DOJ, it seems like the DOJ might share some of my reservations.

But that doesn’t make me anti-investigation per se. It’s probably a waste not the best use of government resources, but it can be hard to see evidence of malfeasance if you don’t look.


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.