Public Interest Authorship



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.


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).