Salvos against Big Brother

We are making available here, in a single posting, all of Eric’s columns from Jim Baen’s Universe on copyright.

We hope you enjoy this collection of the

Salvos Against Big Brother:

A Matter of Principle

by Eric Flint

I’m going to be writing a regular column on the subject of electronic publishing, and the challenges it poses to modern society—as well as the opportunity it provides. This column will take up a number of related issues, including such matters as the proper length of copyright terms, the nature of Digital Rights Management and why we are opposed to it, and the largely mythical nature of so-called “online piracy.”

We decided to keep this column separate from my general editor’s preface for each issue—see “The Editor’s Page”—because we think the issue is important enough for a separate column of its own. Furthermore, there will usually be a number of specific matters relevant to each issue of the magazine that I will need to address in “The Editor’s Page” that would simply get in the way of this discussion.

We’re calling the column “Salvos Against Big Brother” because that captures the key aspect of the problem, so far as Jim Baen and I are concerned. Both the publisher of this magazine and its editor believe that so-called Digital Rights Management (DRM)—by which we mean the whole panoply of ever more restrictive laws concerning digital media, including the Digital Millennium Copyright Act (DMCA)—are the following:

First, they represent a growing encroachment on the personal liberties of the American public, as well as those of citizens in other countries in the world;

Second, they add further momentum to what is already a dangerous tendency of governments and the large, powerful corporations which exert undue influence on them to arrogate to themselves the right to make decisions which properly belong to the public;

Third, they tend inevitably to constrict social, economic, technical and scientific progress;

And, fourth, they represent an exercise in mindless stupidity that would shame any self-respecting dinosaur.

 

As this column progresses, in issue after issue, I will wind up spending most of my time dealing with the fourth of these statements. It is my opinion, and Jim Baen’s, that on top of everything else DRM is just plain stupid —even from the narrow economic standpoint of most of the people who advocate it. And, since the issue has a direct impact on the work and lives of authors, I will spend a great deal of time discussing the practical realities of DRM, as well as the various alternative economic strategies that some people and companies—Baen Books being foremost among them, in science fiction and fantasy—have been adopting in its stead.

But I don’t want to start there, because that might give people the wrong impression. Neither for me nor for Jim Baen is the issue of DRM primarily an economic or practical issue. Although Jim and I have often pointed out, over the past number of years, the sound business logic to our approach to electronic publishing, that’s entirely a secondary issue for us. There’s a basic matter of political principle involved here, which goes right to the heart of what “copyright” is in the first place.

In a nutshell: Copyright terms that become excessively long—and modern terms are absolutely grotesque in that respect—especially when combined with policies that place too many restrictions on fair use, start undermining the whole purpose of copyright. Which is not to provide a living for authors, but to set up a system that maximizes the benefits of intellectual work for the entire society.

Beyond that, DRM is a particularly dangerous political trend, because it’s based on a fundamental fraud. The fact is that very rarely does “piracy” occur by some genius hacker cracking some fiendishly clever electronic code. 99.99% of all books that are pirated have it done simply by someone obtaining a paper edition of the book and scanning it.

So what’s the point of DRM in the first place? It’s incredibly burdensome to legitimate customers and does absolutely nothing to stop “piracy” anyway. The insidious danger, of course, is that as time goes by the pro-DRM forces will keep demanding more and more restrictions on the public’s access to books of any kind. Along with regulations concerning the use of computers, scanners, keyboards, you name it. Because that’s really the only effective way to stop “piracy” and enforce so-called “digital rights management.”

Jim Baen and I do not want books with little chips in them that the authorities can track. We do not want computers or computer equipment to have to be registered. We do not want legal spyware placed in all computers and scanners so that the authorities can make sure they are being used “legitimately”—with penalties attached if anyone attempts to remove the spyware.

If this really difficult to comprehend?

DRM is madness, politically speaking, and that’s why Jim and I are flat against it. Period. You start with principles, and then figure out a way to make money. Not the other way around.

In this particular case, it’s a piece of cake anyway—as I will demonstrate in column after column—so there’s NO excuse. It is perfectly possible to figure out ways that authors and publishers can make money producing electronic texts that are not saddled with DRM—as we are doing with this very magazine, in fact.

The only reason DRM exists at all is because too many powerful corporations with too much influence in government didn’t want to have to get off their lazy butts and figure out how to provide their customers with what their customers wanted. Instead, they used their influence to get their political stooges to pass laws which attempt to force their customers to accept whatever crumbs the new corporate nobility chooses to drop from their tables onto the serfs below.

****

Okay. That said, let me begin with a brief discussion of what copyright is in the first place. That’s as much as I can cover in this first column.

I want to begin there, with that most basic question, because I’ve found that many people—including an astonishingly high percentage of authors—have the most preposterous misconceptions about it.

The first and most important misconception is the notion that copyright is a “right” to begin with. It is not. It never has been—and you can check the entire history of copyright legislation in the Anglo-Saxon legal tradition, going back several centuries, and you will not find a shred of support for that silly notion.

Copyright is a privilege, not a right. It is, in fact, an evil and iniquitous privilege—and has been recognized as such from the beginning. “Evil and iniquitous” in the same sense that any government-enforced commercial monopoly inevitably has negative consequences. The only reason it exists is because society decided, several centuries ago, that as evil as it was, it was a necessary evil—because the alternatives all seemed to be worse.

Here is how Macaulay put it, in his great speeches on the subject of copyright before the British Parliament in 1841:

 

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly… I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good .

 

Macaulay’s position in the pivotal debates on copyright in the British Parliament carried the day, at the time. A similar position was adopted by the founders of our own American republic. Unfortunately, in the two centuries that followed, we have slid back to the position advocated by his opponents. I say “slid back,” because at no point along the way was this retrogression done honestly, in full and open debate before the public. It has been a slow and steady erosion, which has now reached the absurdity of copyright terms that last anywhere up to ten times longer than copyright established at the beginning of the American republic—and, now, accompanied by the most draconian and often absurd attempts to enforce those monopolistic privileges.

All of this, of course, was done in the name of “protecting the intellectual creator.”

Hogwash. What is involved here has nothing to do with protecting the legitimate interests of authors like me and other creative artists and intellectual workers. For that, the old and reasonable copyright laws were more than sufficient.

I am an author myself, and quite a successful one. Even my income as an editor—which is no more than 20% of my total income, the rest coming from my work as an author—is directly tied to sales and royalties. I do not receive a salary for my work on this magazine. I work on commission. I do not receive a salary for my work as the editor of some twenty volumes of reissues of the writings of other authors. I get paid out of a small percentage of royalties.

In short, my income is entirely based on sales and royalties—and I will state here, flatly, that I do not want and do not need the “protection” so kindly offered to me by giant corporations who try to use me as their fig leaf. The Mouse and its 95-year copyright terms can go to hell in a handbasket, as far as I’m concerned.

I do not want my works copyrighted for my lifetime plus seventy years. That is ridiculous. It does me no good at all. It is nothing but an excuse for giant corporations to lock up society’s intellectual heritage as their monopoly for as long as they possibly can so they can gouge the public—and you may rest assured that, when the Mouse’s current 95-year protection plan runs out, the Great Rodent will start shrieking that it needs yet another extension.

Enough. The grotesquely long periods of copyright established by modern laws are not directly related to the issue of DRM, granted. But those terms make every problem connected with copyright ten times more difficult to deal with—including DRM.

DRM is bad enough, on its own terms. Add to that the fact that it will last for close to or (often) more than a century, and you put all the problems of DRM on steroids. Society could live with asinine laws that only stayed in effect for a few decades. It cannot live with asinine laws that get locked in for a hundred years—with further extensions on the horizon, be sure of it—without beginning to suffer from intellectual sclerosis and major political problems.

Not to mention social ones. The modern drive to monopolize intellectual property is not restricted to copyright. You can see the same dynamic at work with regard to patents and trademarks—where the immediate consequences are far more severe than they are with copyrights. It is quite literally true that thousands of children die in the world every day because of excessively long periods—enforced with excessive severity—of intellectual monopolies.

To go back to the beginning, never forget that copyright is an evil. There is nothing good about it, except that it is a somewhat less evil way of renumerating authors and artists for their labor than the alternatives. (Which are basically one form or another of patronage, be it private or public—all of which have their own set of well-established negative consequences.)

So, we live with it. But “live with it” is the right way to view the matter. Not the preposterous applause that I find so many authors showering on copyright. In my opinion authors have a particular responsibility to make sure—or try their best, anyway—that the copyright system that provides them with a livelihood does not become a cancer for society.

As for those authors who shrug their shoulders and say they can’t see where it’s any of their business, I will be still more blunt. If authors don’t see to it that copyright doesn’t becomes cancerous, then—sooner or later—society will simply excise copyright with surgery.

Copyright is a privilege , not a “right.” It is a privilege that society chose to extend to authors and artists and other people engaged in creative intellectual work because society gauged that this intrinsically evil monopoly would still, overall, work in society’s own interest. But if and when that ceases to be true—and we have already reached that point—then society has not only the right but the duty to eliminate copyright altogether.

To put it another way, if authors aren’t smart enough to keep their own house in order, sooner or later they will find it being done for them.

In later columns, I will address the practical aspects of the issue. I will demonstrate that it is perfectly possible, even in the supposed “new world” of the digital era—which actually poses no fundamental new problems at all—for authors and publishers to figure out ways to make a living without becoming a cancer in society. It can be done without DRM, and without any greater copyright protection than we had in times past. It’s not even hard.

But, to conclude, I didn’t want to start there because I didn’t want anyone to have the misconception that my position—or Jim Baen’s—derives fundamentally from narrow economic concerns.

It doesn’t. It’s a matter of principle. As I said earlier in this essay, first you determine what your basic principles are. Only then do you start trying to figure out a way to make money. What you don’t do—ever—is go at it the other way around. Doing so may seem smart and opportune to some people, but it isn’t. It’s just a slippery slide into an abyss.

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One last thing. I referred to Macaulay’s speeches on copyright earlier in this essay. Those speeches, as far as I’m concerned, contain just about all wisdom there is on the whole subject. “New problems,” baloney. There is not one single issue that supposedly arises due to the “digital era” that Macaulay did not already address over a century and a half ago.

I strongly urge anyone with a serious interest in this issue to read those speeches. If you’re wondering how to find them, it’s easy.

Just click here: [Put link here]

 

 

 

Salvos Against Big Brother:

Copyright: What Are the Proper Terms for the Debate?

 

 

I want to continue my discussion of copyright, which I began in last issue’s column, before turning my attention to the issue of so-called “Digital Rights Management” itself. The reason I want to do so is because what lies at the heart of DRM is one set of answers to a few simple questions:

 

1) What sort of protection do authors require, to make sure that they can and will keep engaging in their labor?

2) Why do they need a particular sort of protection, as opposed to another?

3) For how long do they need it?

 

I’ll address the first two of these questions in this column, and the third one in the next.

Let’s start with the first one, whose answer is obvious. If you don’t figure out a way to pay people to do labor such as writing fiction, one of two things will happen:

a) Some potential writers won’t do it at all.

b) Most will, simply because they feel a personal urge to do so. But, because they can’t make a living as authors, they will—certainly on average—never get all that good at it.

The second point, by the way, is much more important than the first. The number of people who set out to become writers for the purpose of making money is miniscule, and always has been. To be blunt, only a moron would take up being an author as a way to make a living, much less a good living. As careers go, for all but a tiny percentage, it is either impossible altogether except as a part-time occupation, or pays dismally and erratically even if you can manage to do it full-time.

I know a lot of authors, and I’m an author myself. I do not know a single one who set out to be an author because they thought it was a smart way to make money. Even some money, not to mention enough to live on. As far as that goes, setting out to be a professional author is one of worst careers you could choose.

Instead, they set out to write because they wanted to write, period. Getting paid was more important to them as a mark of success in terms of reaching an audience, than for the money itself—at least initially.

This fact has led some people to the conclusion that paying authors is unnecessary at all. This silly notion is particularly cherished by the “information wanna be fwee” crowd of pseudo-libertarians. “Good writing,” they argue, “is driven from the heart.” Grubby stuff like paying authors money simply prostitutes the noble art itself. (This is invariably their justification for engaging in willful and flagrant violations of copyright.)

Leaving aside issues of simple fairness, the notion is silly for what ought to be the most obvious reason of all. Whatever else it may be—call it “sublime literature” or anything downwind of that—writing is first of all a craft. A particularly difficult craft to learn, at that, as anyone who sets out to write learns very quickly.

Writing is like acting. Every literate person canwrite, just as any person—literate or not—canact. It does not thereby follow that they can do it well. That’s a different kettle of fish entirely. Almost everybody has a cousin or whatever who can provide fairly good family entertainment at barbeques with their jokes or voice impersonations or antics. That doesn’t mean they could make a living as a stand-up comic.

Doing something well requires two things. First, it requires an aptitude—or talent, if you prefer—for a particular sort of work or activity. Secondly, it requires practice.

This fact, so obvious to everyone with regard to almost anything else, often gets ignored when it comes to writing. It’s amazing to me how many people have the screwiest ideas about writing. They seem to think that a person just sits down one day and, effortlessly, starts churning out good prose.

Well… yes, there have been a few individuals here and there who seem to have managed that feat. But “few” is the right word. The most common pattern, by far, is that it takes a person long hours—years, more often than not—before they learn how to write well enough that many other people want to read what they’ve written.

There’s an old saw in science fiction—I’ve forgotten who first came up with it—that says you have to write a million words of crap before you write anything worth reading. That’s a bit of an exaggeration, in my opinion. At least for me. I’ve gone back through my personal history and added it all up, and I can now strut around and say very proudly that I managed to start writing pretty good stuff after writing only (by my best count) about 400,000 words of crap.

But whether it’s a quarter million or half a million or a million words of crap, there are almost no writers who’ve managed to start writing well without a lot of practice, false starts, and a learning experience. Nor does that end once they start getting published. Almost all writers continue to improve with practice, for a period of many years after they start getting published.

In short, in writing as in every other field of human endeavor, professionals are—on average, understanding that there are always some exceptions—better than amateurs.

Period.

Yes, yes, yes, there are always some exceptions. In any field of work, there are a few amateurs who are better than most professionals. To give one example, every year there are a few graduating amateur college athletes whom everyone knows are already better in their sport than most professionals—which is precisely why they get offered big contracts to “turn pro.” But even then, every such extremely gifted amateur has to go through a sharp and steep learning curve before they really perform as a top professional athlete. And many never manage to make the transition at all.

And they’re only individual exceptions to the rule, anyway, they’re not the rule itself.

The rule is simple:

Put the best college football team on the field against any professional football team, and the pros will win at least nine times out of ten.

The same goes for writers.

If you don’t believe me, when it comes to writing, take a look—your choice—at either the list of Nobel Prize winners for literature or any bestseller list. You will quickly discover that well over 90% of the authors on any such list are professional writers, not amateurs. And, if they do have a “principal” occupation other than being an author, it’s usually one that is either closely connected to writing or, one way or another, allows them a great deal of time to work as a writer.

In his speeches on copyright—from which I will be quoting throughout these essays—Macaulay put it this way:

 

You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalise themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

 

From there, Macaulay goes on to discuss the advantages of copyright over patronage. I will deal with that issue in a moment. But, for now, let me stick to the point at hand.

Which is simple: The fundamental purpose of copyright is not to pay authors. It is to make sure that society gets as many good books written as possible. Or, to put it another way, paying authors is a means to an end, not the end itself.

Immediately, some authors will raise an objection. “I work like anyone else, dammit. So I should get paid!”

Well, of course. But why should you get paid by copyright? Any form of labor should be renumerated, to be sure, or you have slavery. But work-for-hire (as the practice is called in publishing) takes care of that obligation just fine.

For those of you who are not writers and are wondering what “work-for-hire” means, it means exactly what most of you do for a living. You go to work every day, for which you get paid (as a rule) a sum of money determined by the length of time you work, adjusted for whatever level of skill you bring to the labor.

Why should writers get paid any differently? Why, to put it another way, should a writer be entitled to a share of the money earned by his or her product, when a waitress or a truck driver or an accountant or a steel worker is not?

When I was a machinist, I was paid by the hour. Let us say, for example, that I made a shaft to be used in a machine making parts for automobiles. I got paid for the work I did. But I did not get “royalties” which constituted a share of the sales eventually earned by the auto manufacturer because they used my shaft (among a multitude of other parts) to make their product.

So why should writers get royalties?

Well, there’s an answer, but it’s a bit complicated. First of all, it’s because intellectual labor that can be easily reproduced poses a particular set of problems for remunerating the creator. Writers cannot, as painters and sculptors typically do, sell their actual product. A sculptor will spend weeks or months on a particular piece of art, and then sell that individual work to an individual customer. Once the sale is made, the piece of art is owned by the customer, not the sculptor—and, sure enough, sculptors do not get royalties.

But an artist can do that because the concrete, material object he or she produced has a value of its own. A piece of text, such as a novel manuscript, has no such value. (I leave aside the small collectors’ market, which couldn’t possibly support most writers—and wouldn’t exist anyway, if books weren’t published.)

The value of text is in the ability to reproduce it many times over for a large audience. But that same ability to be easily reproduced creates the problem. In a nutshell, if a “legitimate” publisher can reproduce the text, so can (theoretically, at least) anyone else.

Which, in fact, was exactly the situation in the English-speaking world prior to the institution of copyright. (I’m using the history of the English-speaking world with regard to copyright because I’m most familiar with it. But you could find a similar historical pattern anywhere.) Plays produced by Shakespeare or Ben Jonson could be produced by anyone who wanted to. The authors got their money—which was damn little—by selling the manuscript to a producer and then letting the producers fight it out over which one could put on the most popular performance.

That worked… badly, but well enough, so long as most literature took the form of plays and there was not yet a very well-developed publishing and distribution industry. The cost of putting on a play was and is very high, and the cost of obtaining the manuscript was a small part of it. That entry-level cost eliminated most potential chiselers.

As for poetry and other forms of literature, they were either produced by the author at his or her own expense, or paid for by a patron.

The first real copyright law in the English-speaking world was the so-called Statute of Anne, adopted by the British Parliament in 1709. That statute—which didn’t actually take effect until 1710—vested authors with a legal monopoly of the work for a period of 14 years after it was copyrighted.

Why were authors given the monopoly instead of publishers? The reason is simple: somebody has to have the copyright, or society has no option except to rely on patronage. The problem with using work-for-hire as the basis for paying authors is that it won’t work unless publishers have the ability to establish copyright—or you simply push the problem back a step. And, that being so, the British parliament (very correctly, in my opinion) decided that it was fairest to give the monopoly to the ultimate producer rather than to a middleman.

What’s necessary to understand, however, is that at every step of the way the basic consideration was society’s interest. In the absence of any over-riding social imperatives, authors and publishers have no more “right” to a legal monopoly than anyone else does. To put it another way, copyright does not exist simply to enable authors to make a living—which could and can be done several other ways—but to make a living in a way which is most beneficial to the society as a whole.

You can’t ever lose sight of that framework.

The value of copyright, as Macaulay put it very well, is that while it is an evil, it is less evil than any of the alternatives. The only real alternative is patronage—public or private—and those have well-known drawbacks. Almost any form of patronage runs at least the risk that whoever the patron is—public or private—it will be the patron who determines what does and does not get produced. The advantage to copyright is that, at least potentially, it gives the author the ability to find his or her own market for the work.

Mind you, patronage continues to exist in publishing, and always has—a lot of it, in fact. To give some examples:

All publications by the government are paid for by the patronage (ultimately) of the taxpayer. That’s why, with the exception of some material, usually classified for security reasons—whether properly or improperly, but that’s a separate political issue I won’t deal with here—everything published by the U.S. government printing office is automatically in the public domain.

A great deal of scholarly publications are paid for by patronage—or, at least, most of the cost is borne by patrons. To give a common example, university researchers who publish a book typically retain copyright and earn some money from the book. But, with a very few exceptions, they couldn’t possibly afford to do the needed research and writing on the actual proceeds of the sales of the book. The real cost of the book is borne by the university, which pays them a salary to engage in research and writing.

To give yet another example, a great deal of political writing is paid for by patronage. That’s especially true for writing which advance opinions or proposals that are outside the accepted mainstream.

There’s nothing wrong with patronage, as such—as long as you don’t let it take over the whole show. You need copyright, among other things, as a constant check against patronage getting too restricted.

All right, let me recapitulate. So far, I’ve addressed the first two of the three questions I posed at the beginning of this essay:

 

1) What sort of protection do authors require, to make sure that they can and will keep engaging in their labor?

2) Why do they need a particular sort of protection, as opposed to another?

 

That leaves the third question, which is the critical one for the rest of what I’ll be discussing in this essay:

 

3) For how long do they need it?

 

I’ll discuss the details involved in this question in my next essay. But for now, briefly, there are two answers to this question:

First, authors need to have enough protection to enable them to be able to make a living as full-time writers.

Second, that protection has to be long enough to provide them with a motivation to write for the public, and see doing so as a possible profession.

But that’s it. Those are the only two legitimate concerns. Any term of copyright which exceeds that minimum necessary length, as Macaulay put it in the quote I cited in my last column, has no legitimate purpose. Once you cross that line, a necessary evil has simply become an evil—and the farther past that line you go, the more evil it gets.

At the onset of what I will call the “copyright era,” which began in 1709 and has now lasted almost three centuries, the term of copyright was set at fourteen years. The newly-formed United States, in 1790, adopted in its first copyright law a modification of that, which allowed for copyright to be extended an additional fourteen years if the author chose to renew it. In 1831, Congress revised the law to allow for an initial copyright term of twenty-eight years, with the possibility of another fourteen years if the author chose to renew—i.e., they made copyright last for a possible total of forty-two years.

For reasons I will argue in my next column, Congress got it… pretty close to right at that point. Not quite, because the extension provisions create unnecessary complications and a provision needs to be added that ties copyright to the life of the author, or you get into a different kind of problem. My own position is basically that advanced by Macaulay in his 1841 speeches—a flat 42-year period of copyright (I’d simplify it and make that just forty years), with the provision that so long as the author is alive he or she retains copyright.

But that’s for the next column. What I wanted to do in this essay is establish the basic parameters of the problem. That’s critical because of the well-known old saw about debates:

Whoever sets the terms of the debate automatically wins the debate.

The reason the parameters are critical is because what has been happening in modern society is that the terms of the debate have been steadily (and stealthily, to call things by their right name) shifted back to the terms which the “perpetual natural right” theorists tried to advance in the middle of the 19th century to undermine copyright law.

One hundred and fifty years ago, men such as Macaulay in Britain and Justice McLean of the U.S Supreme Court, torpedoed that attempt.

I’ve already introduced you to Macaulay. I’ll end this essay by giving Justice McLean his well-deserved credit. Here is a quote from his majority decision in the case of Wheaton vs. Peters , in which Wheaton advanced the argument that authors were entitled to perpetual property rights in their work:

 

“…since the statute of 8 Anne, the literary property of an author in his works can only be asserted under the statute. . . . That an author, at common law, has a property in his manuscript, and may obtain redress against any one who deprives him of it, or by improperly obtaining a copy endeavours to realise a profit by its publication cannot be doubted; but this is a very different right from that which asserts a perpetual and exclusive property in the future publication of the work, after the author shall have published it to the world.”

 

Always remember that the terms of a debate are what’s critical. Copyright is about the needs of society, not about abstractions concerning “property” as such.

As before, I’ll end this essay by urging everyone to read Macaulay’s speeches. You can find them here: [PUT LINK HERE]

Look, folks, you may as well just bite the bullet and read the damn things. Because before I’m done, I will have quoted just about every word in them anyway. I told you at the beginning: There is nothing involved in the current disputes over copyright that Macaulay didn’t answer a century and a half ago.

If I wanted to be philosophically pretentious, I’d close by citing Santayana’s famous saw that those who remain ignorant of history are doomed to repeat it. But having cleverly cited the old saw with that disclaimer, I can put it more simply still:

For Pete’s sake, how many times do you insist on re-inventing the wheel?

 

Salvos Against Big Brother:

Copyright: How Long Should It Be?

 

I ended my last essay by presenting the general principles needed to answer the question, how long should copyright terms last?

For those of you who didn’t read or don’t remember what I said, here it is:

 

First, authors need to have enough protection to enable them to be able to make a living as full-time writers.

Second, that protection has to be long enough to provide them with a motivation to write for the public, and see doing so as a possible profession.

But that’s it. Those are the only two legitimate concerns. Any term of copyright which exceeds that minimum necessary length, as Macaulay put it in the quote I cited in my last column, has no legitimate purpose. Once you cross that line, a necessary evil has simply become an evil—and the farther past that line you go, the more evil it gets.

 

Now let’s get into the details.

The first thing I need to establish are some facts. I need to do that because I’ve found that many people, including many authors, have very unrealistic notions about how long copyright actually protects anything. What happens is that they look only at the law—ignoring all social and economic realities—and say to themselves, “Oh, wow, anything that gets written—including anything I write myself—will be protected by copyright for seventy years after I die.”

Uh, no. In the real world—except for intellectual property owned by giant corporations—here is what really happens:

The longer copyright lasts, the less likely it is that 99.99% of anything ever written will ever get reissued. What excessively long copyright terms actually do is destroy writing. They don’t protect writing, they ravage it.

Why?

Well, it’s simple—if you look at writing as a professional craft, subject to economic imperatives like any other form of work, instead of a legal or philosophical abstraction.

Here is the cold, hard reality. I call the ninety-nine percent rule :

99% of all writing falls out of print within ten years after it is published. In most cases, within five years. That’s because the standard rule of thumb in the publishing industry is that 80% of all sales of a book take place in the first three months after publication. And the remaining 20% usually drops off steeply. Within a few years of a book being published—faster than that, in the case of most shorter pieces of work—it is simply not economically viable for a publisher (or a book distributor or retailer) to keep the book in print any longer.

99% of all writing that falls out of print will never be reissued, under any circumstances—even with good copyright laws. That goes up to 99.99% with bad laws like the ones we have today.

The reason, again, is economic. For all the paeans of praise showered on “immortal literature,” the cold, cruel, hard fact is that the overwhelming majority of writing is pretty ephemeral as far as the public is concerned. This should come as no surprise to anyone, because the fact is that whatever else it may be, fiction writing is first and foremost entertainment—and entertainment, with a few exceptions, has always been subject to the dictate that the public wants novelty. They don’t want to hear the same story over and over again; instead—with a few exceptions—they want to keep getting new ones.

For every piece of writing that stays before the public for centuries—such as Cervantes’ Don Quixote —there are literally hundreds of thousands of pieces of writing that vanish with the wind. That’s even true with books, much less short pieces of writing. Most books—“most,” as in 99.999% of them—are not and will never fall into the same tiny category Don Quixote does. They are ephemeral. They will arrive, enjoy their day in the sun—such as it may be, which varies a lot—and then they will pass away. Most of them forever.

That’s the reality—and that is the reality which determines the lives of professional authors, as professional authors.

And that’s also the reality that should—and did, until fairly recently—determine the length of copyright terms.

So. What shouldbe the length of copyright terms? Let’s approach the problem by bracketing it. Ranging shots, so to speak.

The original copyright terms set in the Statute of Anne of 1709 (fourteen years) and the modification placed in the original U.S. Copyright Act of 1790—which provided for a fourteen year extension after the first fourteen years had elapsed—has turned out to be too short.

Why? you might ask—given that I just got through pointing out myself that 99% of all books will fall out of print before fourteen years elapse, anyway.

Well, it’s because averages are only that—averages. Remember that the purpose of copyright is first and foremost to provide a means whereby some authors can become professional authors. So what you now have to do is consider what percentage of writers can ever manage to do that ?

And here we run into another ninety-nine percent rule. Or ninety percent rule, at least. The big majority of people who get something published will never be able to make a living as writers. Indeed, most of them won’t ever generate a significant income at all from writing, even one that could substantially supplement their income from their principal means of livelihood.

I can’t give you exact percentages, because I don’t have them. So far as I know, nobody has ever done a systematic survey and study of the issue. What I can do is give you some rough guidelines, based on my own experience as a professional writer and what I’ve learned from talking to many professional writers, editors and publishers.

As I said in my last essay, writing is very much like acting. It’s a profession that has no entry bars of any kind. You do not, as a doctor or lawyer does, need to take any schooling to practice the trade, nor do you need to pass any formal examinations or get any official certificates entitling you to engage in the profession. Furthermore, although certainly not to the same degree as acting, writing is a relatively glamorous profession.

So, lots of people take a crack at it. Lot and lots and lots of people. Of those people who take a stab at it, about 90% never have any success at all.

But some do. Perhaps 10%, sooner or later, will get something published—or, if they’re actors (or singers) get a small gig somewhere. But they never manage to do it with any regularity or frequency at all. Eventually, most of them stop trying altogether and move on in their lives to something else.

Of that large number of—“extras,” I will call them—perhaps 10% manage to get established as regular practitioners in the trade. Not regularly enough or prominently enough to ever make a living at it, except as a sideline, or even derive a significant amount of money from it. But they do get enough work for writing to become a significant part of their lives.

Of that ever-diminishing number, perhaps 10% will manage to enter the ranks of what you can call genuinely professional writers and actors. They may still—probably won’t, in fact—make enough money to do it as a full-time, exclusive occupation. But they make enough money to practice it continually and get published (or hired as an actor) with great regularity. In writing, we call this being a “midlist” author. In acting, it’s (usually) called being a “character actor.”

Finally, of that—now very small—number of people, perhaps 10% are able to make enough money at it to engage in writing or acting or singing as a full-time, exclusive occupation.

For the social purposes for which copyright exists—or, at least, should exist—it is those last two categories of writers who are the key. As Macaulay explained in the passage I cited in my last essay, it is these two categories of writers who will produce most of what society considers valuable and wants to protect. Not protect the works, mind you—but protect the ability of those two classes of writers to devote that much time and effort to creating them.

That’s the core of it. When it comes to establishing the proper lengths of copyright terms, there are no other considerations beyond whatever is necessary to provide those two classes of people with adequate protection. None.

Copyright terms longer than fourteen years are simply not necessary for writers who fall into the broader categories. Or “lower” categories, if you prefer, but I’m trying to avoid any terms that might imply that I’m sneering at anyone. The fact that someone who tries to write but only manages to get one or two things published in a lifetime—if that—has no bearing whatever on their worth as human beings. I know plenty of people I think very highly of, including my mother and my wife and most of my close friends, who have never published anything at all. And, on the flip side, I know some very successful professional authors whom I would cross the street to avoid because I detest them.

Yes, certainly, it’s possible that a short story written by someone who only wrote a handful in a lifetime might get reissued more than fourteen years after it was written, and thus have fallen into the public domain under the original copyright laws.

So what? That person obviously doesn’t in any way depend on such completely unpredictable, infrequent and erratic income. Once a short period has elapsed in which it has earned any predictable income—and fourteen years is more than enough for that—it doesn’t need to be protected any more than someone who wins a decent jackpot in a slot machine in Las Vegas in the year 1970 needs to be guaranteed that they will win a similar jackpot fifteen years later, and then fifteen years after that, and fifteen years after that.

A lot of people—especially writers—have a very hard time understanding this. That because they confuse “copyright”—which is a utilitarian, social concept—with one or another form of what’s called “natural property.” (Briefly, and a bit crudely, “natural property” is the notion that something is “property” by virtue of its innate essence.)

“I wrote it, damnation! Therefore it is my property and I should get paid for it!”

That’s the attitude, in nutshell. The mistake involved is that they are confusing their property with the legal mechanisms that would be necessary to make that property actually worth something in monetary terms. To put it another way, they think that simply because something is their property that they should be guaranteed that it would be worth something in monetary terms, should it be put up for sale.

But that’s nonsense. Like everyone else, I own lots of things—my property, you betchum—that I couldn’t sell for a dime. To give an example, I own a fifty-year-old grammar school report card that somehow managed to remain in my possession all these decades. It contains some charming notes from my fourth-grade teacher. Charming to me, anyway. Perhaps someone else wouldn’t take the same pleasure in seeing an obviously exasperated teacher having checked every single one of the boxes that says “Performs below his capacity!”

Well, I think it’s a hoot. One of my most favored mementos. But how would people react if I tried to get a law passed guaranteeing that any half-century old report card put up for sale on eBay should get money?

Obviously, in that sense, anyone’s writing is their property—regardless of how much time has elapsed. That’s why, if a publisher reissues the story, the publisher will put the author’s name on the byline—even if they don’t pay the author a dime for the right to do so, since it’s in the public domain.

By the way, as aside, most commercial publishers would pay the author something, anyway. Laws are laws, economic realities are economic realities, and public relations are public relations. The cost of buying the rights for a long out-of-print story by an obscure writer is so low that most publishers will gladly do it just to avoid, if nothing else, the hassle of trying to determine whether the work is in the public domain and/or the potential backlash they’d get from public opinion if they didn’t. I’ve reissued over twenty volumes of stories by old authors, either as the sole editor or working with other editors, and I can tell you that in no instance did we try to determine if something was in the public domain or not.

To give an example, when I began my reissue of Christopher Anvil’s writings for Baen Books, we bought the right to publish anything Anvil had written of a science fiction or fantasy nature up to the time of the contract. (He’s since written new stories which we bought separately—one of which, as it happens, appears in this volume of Universe. ) In the course of my negotiations with Anvil, he expressed the concern that he thought some of his works might have fallen into the public domain because he wasn’t sure if he’d renewed the rights to a few stories. His concern was that he didn’t want to be misrepresenting anything in the contract, since we were paying for all the stories. I told him I simply didn’t care, and neither did Jim Baen. Neither one of us is going to go chasing after stories that might have fallen into the public domain, when we are reissuing the work of an author or an author whose estate we’re dealing with. Leaving aside any ethical issues, it simply wouldn’t be worth it in purely cold-blooded commercial terms. It takes time and labor —often, lots of it—to determine if something is in the public domain. Why bother, when it’s so much cheaper and easier to just pay the author or the estate—and thereby also avoid any risk of triggering public antagonism?

Perhaps the best way to make this clear, is to put it in the bluntest, harshest way I can. Why in the hell do some authors think they are entitled to an elite privilege that no one else in society gets?

Let’s take a waitress, who works her whole life as one. She is entitled to her pay, and her tips. And, when she dies, she can leave to her children whatever—usually little—there is in the way of material possessions that her life’s trade enabled her to accumulate.

What she can’t do, however, is demand that even after she retires, she is entitled to a percentage of the tips from “her” table. Even though the income from those “tip royalties” would undoubtedly be more substantial to her—a lot more substantial—than whatever money a writer who produced a handful of stories would ever get for a story being reissued more than fourteen years after it was written. (Much less twenty-eight years, if they renewed it.)

Now let’s look at the other end of the question. Bracket the problem, as it were, with another ranging shot.

Why would someone like—to give a current example—Stephen King or J.K. Rowling need more than fourteen years of copyright protection?

For the tiny handful of writers in that superstar category, fourteen years is plenty. Long before those fourteen years have elapsed, a writer like King or Rowling has made so much money that—assuming they don’t have the brains of a pigeon—they will have invested it in a multitude of projects which guarantee them an income (and assets for their heirs) that are completely unaffected by copyright at all. Whether it’s real estate, stocks, bonds, whatever.

True, some very successful writers are very improvident. So what? That is their problem, not society’s. Why should society be burdened by excessive terms of copyright just to make sure that Megastar Author So-and-so doesn’t have to face the same (paltry) risks that any very wealthy person who invests badly does?

Dammit, as close as I think we’re getting these days, we still don’t have a Multi-Millionaires and Billionaires Guaranteed Income law. Not for oil tycoons, not for any tycoons—except superstar authors, and (more to the point) giant media corporations with intellectual properties like Walt Disney Corporation.

No, the real problem comes with authors “in the middle”—authors who fall into those two categories I talked about. I’ll call them, for lack of a better term, midlist authors and lead authors who are successful but not Literary Superstars.

For those two critical classes of authors, the ones who provide society with the backbone of its literary output, fourteen years of copyright protection simply isn’t enough. That’s because, for many if not most of those authors—and this varies from one decade to the next, given the ups and downs of publishing practices—the income from a large backlist is in fact very important to their ability to keep practicing their trade.

There’s another old saying among science fiction writers—again, I can’t remember offhand who said it—that “you know you’re a real pro author when the income from your royalties exceeds the annual income from your advances.”

True enough, most books will fall out of print before fourteen years are up. More precisely, most editions will fall out of print before fourteen years are up. But many authors in these two categories—not all, but a very high percentage and probably a majority—will see many of those works reissued in a second or third or fourth edition. Editions which, in many cases, will come long after the works were originally written.

So, for them—and they are the two critical classes of authors, when discussing the issue of copyright—fourteen years simply isn’t long enough.

Twenty-eight years, which was the first extension given by Congress in 1790, was…

Close. Not quite right, but close. Close enough, that I would personally far rather go back to that 28-year period than live with our modern “life plus 70 years,” which is insane.

The problem with a twenty-eight year term, even leaving aside the issue of having to get an extension (which I’m opposed to, because it makes determining copyright so complex that it’s a massive nuisance for everybody), is that it keeps skirting the edge of being too short. Speaking as a full-time author, I could certainly live with it, but I suspect the problems it would generate would be continuous enough and frequent enough that it would leave the whole issue a running sore with authors and—the real danger—keep reopening the issue so that the minions of “natural property right” could once again wedge their foot in the door.

Of course, right now, they’ve wedged their big fat bloated elephantine bodies through the door and they’ve taken over the whole damn joint. But my purpose here is to establish what ought to be the proper length for copyright—and one of the considerations there has to be doing whatever is necessary to keep the natural right leviathans from surfacing again at some point in the future.

Macaulay came to the same conclusion, a century and a half ago, and I think he was right. He proposed a straight, simple forty-two-year period of copyright protection. I’d simplify that to forty years, because Macaulay’s forty-two was just an archaeological remnant from the fact that current law in his time was 28 plus 14 with an extension. But whether it’s forty or forty-two is a minor issue. Either one would work fine.

Macaulay also included a proviso that if the author was still alive when that forty-two year period had elapsed, copyright would automatically continue until his or her death, which I also support. The purpose of that proviso, from my viewpoint, is mainly to keep the behemoths under control—because they will seize those few instances where a living author is being deprived of income because one of his or her works has fallen into the public domain as their figleaf for demanding a return to “natural right” concepts of copyright.

Here’s how Macaulay put it:

 

Sir, there is no controversy between my honourable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author’s death the State shall recognise a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.

 

For a professional writer, especially if you include that “or life” provision, forty or forty-two years of protection is plenty—and, while it poses a certain burden on society, the burden is not really that great.

The reason it isn’t that great is due to something that I think few people understand properly, except those who—like me—have done a lot of work trying to get old stories reissued.

The real economic obstacle to getting old stories reissued, contrary to what most people think, is not money. Publishers routinely, as a matter of course, shell out money—lots of it—in order to obtain the rights to publish a story. And the monetary value of old stories is so low that it’s a pittance compared to what publishers routinely pay to get the rights for new stories.

If you want to know how low it is, Baen Books paid the same money—$6500—to obtain the rights to James H. Schmitz’s entire estate as it paid me for the rights to my first novel, Mother of Demons.

If that strikes you as absurd, well… it strikes me that way, too. But that’s honestly how it works. It’s just a fact that with a very small number of exceptions—Robert Heinlein’s estate, for instance—the monetary value of a writer’s work drops like a stone the minute he or she either dies or it simply becomes widely known that he or she is no longer actively writing.

Why? It’s not because of publisher machinations. It’s because—remember what I said above?—the public almost always wants novelty. It’s just a fact that, with a few exceptions, reissues don’t sell very well. So, they’re not expensive to get. From the standpoint of a commercial publisher, it’s practically pocket change.

Of course, new authors—with a very few exceptions—don’t sell well, either. But the difference with a new author is that they might sell well, with a future book, whereas an author who’s dead or permanently inactive is not going to do so.

Jim Baen put it to me this day, some years ago, when I commented to him that I thought it was a bit grotesque that he paid me the same money for my first novel that he paid for the rights to the entire estate of James Schmitz. (Mind you, I wasn’t offering to give him any money back! I was just making a philosophical observation.)

I don’t recall his exact words, but Jim’s response was essentially this:

“Eric, almost no first novel is worth a thin dime, in cold-blooded money terms. Most first novels lose money for a publisher. But publishers—smart ones, anyway—aren’t really buying ‘first novels.’ What they’re really doing, when they pay an advance for a first novel, is taking a gamble that the author will someday be writing books that bring in a lot of money. It’s an investment in an author’s future earning prospects, not a purchase of a book—and you simply can’t invest in the future writings of an author who’s dead or isn’t writing any more. There are a few exceptions, like RAH, but not many.”

The real problem with reissuing old stories is not the money involved. It’s that copyright terms that are too long—and the modern laws are grotesque, in this respect—make the labor and cost of determining who owns the rights so laborious and time-consuming that it simply isn’t worth it for most publishers, most of the time. A long out-of-print story won’t be worth more than perhaps a couple of hundred dollars in advances. So how many publishers and editors are going to be willing to spend hours of their labor—which means money, indirectly—in order to track down who owns the rights after many decades have passed? Keeping in mind that in many cases nothing remains of the author’s whereabouts or who his heirs might be.

“Last known address, somewhere in Iowa. That was thirty years ago. And his last name is… oh, swell. Johnson. Tell you what. Let’s call Eleanor Wood on the phone and see if we can get the rights to reissue another Robert Heinlein story. That’ll take five minutes.”

That’s how it works, in the real world. That’s why I said, at the beginning of this essay, that excessively long copyright terms do not protect the work of authors—they destroy it.

 

All right. I’ll end my discussion of copyright terms here, at least for the moment. I’ll probably return to the issue again—and again—in later columns. But I’ve covered enough of the issue to provide us with the proper basis from which we can move on and discuss the issues involved with so-called Digital Rights Management.

What you will discover—which is precisely why I approached the problem by starting with copyright in general—is that the very same issues will keep re-emerging.

DRM, among other things, is a reversion to the “natural rights” position that Macaulay—and the founders of the American republic—rejected long ago. Instead of trying to deal with the challenges and opportunities of the “digital era” by applying the sturdy and long-tested utilitarian principles regarding copyright, DRM tries to deal with them by imposing ever-more-burdensome restrictions on society’s ability to use and enjoy the creative output of its authors and artists.

I will close by—once again—urging everyone to read Macaulay speeches. (It ain’t hard to find them, folks. Just click here: [INSERT URL])

For those of you who are still skeptical concerning my claim that Macaulay said everything important there is to say on the issue of “digital publication” a century and a half before anyone ever heard of it, I invite you to consider the fact that—way back in 1841—he was able to predict what would happen in any society that made copyright protection too burdensome for the society as a whole.

Those who forget history are condemned to repeat it. A century and a half ago, Macaulay predicted—with perfect accuracy—exactly what would happen if the music recording industry in the late 20th century reacted to new technological developments by getting their stooges in Congress to pass ever-more-burdensome laws forcing—or trying to force—their customers to accept their Royal Monopoly.

Read it and weep:

 

I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

 

 

Salvos Against Big Brother:

What is “Fair Use”?

 

 

Although this column addresses the controversy surrounding so-called Digital Rights Management, I devoted my first three essays to a discussion of the general principles concerning copyright as such. As I explained, I did that because it’s impossible to discuss DRM intelligently without understanding that all the issues involved are couched within—derive from, actually—the general principles in our society that govern copyright as a whole.

Copyright is not an issue sitting over here, with DRM being a different issue sitting over there. In reality, DRM sits right inside of copyright.

The link between the two—the cushion that DRM sits on, if you will allow me to develop this into a metaphor—is called “fair use.” It is one of the most critical aspects of copyright law, and has been since the inception of the copyright era in the early eighteenth century. And my metaphor is actually a good one, because “fair use” is exactly that—a cushion. It’s the provision in copyright law—I’m about to lower the bar for this metaphor—that keeps society’s buttocks from getting too badly bruised by the hard limits that copyright places on society’s ability to benefit from creative intellectual or artistic work.

But DRM is too heavy. It’s steadily squeezing all of the real substance out of society’s fair use cushion. By now, that cushion isn’t much more than a skimpy little pad. Before too long, the way things are going, it will be gone entirely.

The definition of “fair use” is slippery in copyright law, and always has been. In the nature of things, it’s a gray area rather than a sharp line. Trying to define it precisely, in legal terms, poses much the same problem that trying to define pornography does. One person’s filthy disgusting story is another person’s literary masterpiece. Terms which have both been applied, to give just one example, to James Joyce’s famous novel Ulysses.

Whatever the judges come up with in their various decisions, however—and those decisions are vast in number—society as a whole long ago settled comfortably into a definition of fair use that pretty much parallels Chief Justice Potter Stewart’s famous comment regarding the definition of pornography. When pressed about it, Justice Stewart said that coming up with a precise definition of pornography was probably impossible, “but I know it when I see it.”

For three centuries, now, until the advent of DRM, that was pretty much the way society as a whole handled the problem of fair use. And it worked just fine, in all but a tiny handful of instances. Just about everybody understood—closely enough for almost all purposes—what was a legitimate “infringement” of someone’s copyright and what wasn’t.

That’s what fair use is, by the way. It’s an infringement of copyright that is considered legitimate, and therefore not subject to legal penalty.

Here is a good example of the difference between the two—at least, it would have been a good example before giant corporations started shoving DRM down everyone’s throat:

If you enjoy a cartoon strip you see in your morning newspaper, clip it out, and post it on a bulletin board or your tool box or your office door at work, that’s fair use. Keep in mind that you have in fact “infringed” the cartoonist’s copyright. Oh, yes, no doubt about it. A number of people will now be able to see and enjoy the cartoon strip without paying a penny to either the cartoonist or the newspaper which holds the right to distribute the cartoonist’s work.

But nobody would have objected, in times past—including the cartoonist, unless he was an idiot. They didn’t object for two reasons:

First, because it wouldn’t have done them any good to object, anyway. The law was on the fair user’s side. Traditional copyright law was based on the understanding that society’s intellectual discourse would grind to a halt if you didn’t allow fair use. Or, at the very least, it would greatly impede that discourse. The reason is because literary and artistic intellectual work does in fact enter the public domain, regardless of what the law says. The traditional concept of “fair use” simply recognized that fact, and gave it sufficient legal protection that copyright law remained a benefit to society, instead of a hindrance.

Consider, for instance, how frequently you’ve seen or heard someone—in print, not just verbally—refer to a situation as “a Catch-22.” That notion, originally presented to the world in Joseph Heller’s novel Catch-22 —a book which is still under copyright—has long since entered the public domain. Not legally, but in reality. It has, quite literally, become the common intellectual property of the human race. Or that part of it, at least, that speaks and reads English.

But neither Joseph Heller nor any publisher who paid for the rights to publish his novel, ever sued anyone for doing so. Nor, if they had been dumb enough to do so, would they have won the case in court.

Although…

They might be able to win such a case today, if someone used the term in a digital format. The ongoing destruction of fair use by the ever-increasing application of DRM has just about reached that level of insanity. And if you think I’m kidding, there was a case not too long ago when a director of a documentary film was forced to pay a record company for “use of copyright” because, in her film, a teenager received a phone call on her cell phone, and the signal was a few notes from a popular song the rights to which were held by that record company.

(And the music recording industry wonders why everyone despises them…)

Those few notes took only about two or three seconds to be heard—which is just about as long as it would take you to write “Catch-22.”

In fairness to the letter of the law, even as it stands today, if that film maker had challenged the record company in court, she would probably have won. She’d probably have won hands down, in fact. The reason she chose not to contest the record company’s demand and pay them instead was a practical one. She was an independent film maker with a limited budget, and the company demanding their Danegeld was a giant corporation with a huge staff of lawyers and a huge bank account.

Today, with society’s wealth being increasingly monopolized by giant corporations and the legislators who stooge for those corporations passing ever greater restrictions on fair use, this has become standard operating procedure. Giant corporations who have the rights to intellectual property will file law suits or threaten legal penalties even in cases which are patently absurd—knowing full well that they’re far more likely to get a private settlement than they ever are to face a courtroom, because of the tremendous disparity in wealth and power between them and their victims.

When gangsters do this, it’s called “extortion” and the police will come after them. When giant corporations do it, it’s called “defending copyright”—and the police will do nothing. Even if they lose the case in court, on the rare occasions when a small fry challenges them, these giant corporations pay no significant penalties.

To go back to my example of the cartoon strip, it’s also clear enough what would not constitute fair use. If, for instance, you started making decorative magnets for refrigerator doors using that strip and putting them up for sale on the market, you would clearly be infringing the cartoonist’s copyright, or the rights held by a distributor.

That’s because insofar as there is any single thing that marks the boundary between fair use and genuine copyright infringement, it’s money. It’s one thing for you to “borrow” an intellectual creator’s work for personal or purely intellectual purposes. That’s fair use. It’s another thing entirely if you try to make money from his work without paying him for the right to do so, as long as his work is still under copyright.

Is this complicated, for Pete’s sake?

No, it isn’t. Sure, sure, there are some gray areas here and there. Big deal. There exists no law on the books concerning any subject that doesn’t have some gray areas, here and there.

And, until DRM started sinking its vampire fangs into society’s throat, even those gray areas were not all that hard to sort out legally. To give an example, if a student or scholar made a copy of a scholarly article on a duplicating machine for his or her own purposes, that’s traditionally been considered fair use. On the other hand, if the same person or a group of persons started duplicating large quantities of that same article for the clear and obvious purposes of not having to pay to get the legal copy, the court were likely to rule that copyright infringement had occurred.

I’d have preferred using the simpler expression “xeroxed” a copy in the paragraph above, rather than the clumsier formulation I used. In the real world, where people actually live, the term “xerox” has been a common verb that long ago entered the public domain as a matter of fact, regardless of what the law says. I did not use it, however, because under the increasingly restrictive modern laws concerning all forms of intellectual property, Xerox Corporation might sue me for “trademark infringement.”

Yes, I know it seems silly, but that’s where our society is headed. And don’t let anyone tell you that what’s involved are deep and profound legal principles—no, it’s just greed—or that any of this is a new problem created by the digital era.

Hogwash. The practice of turning very familiar proper names, trademarks and copyrighted phrases into common words and terms is one that humanity has used for a long time, because it serves our purposes well. Some examples:

Using the term “spam” to refer to unwanted email is a new one, true enough, and was occasioned by the advent of computers.

But here’s one that goes back a century:

Using the term “ping pong” either as a shorter version of “table tennis” or simply as a quick phrase that nicely depicts any number of situations. (As in: “That poor kid. In the process of getting a divorce, his parents are batting him back and forth like a ping pong ball.”)

I’m concentrating in this column on issues of copyright, but issues concerning the proper use of trademarks and patents are closely related. The basic principle involved is the same: If you don’t allow a reasonable amount of fair use of these things, you might as well be tossing sand into a machine. The reason society values the work of its intellectual creators in the first place is because that work—or the best of it, at least—is valuable. But the only way it can be valuable is if there aren’t too many burdensome restrictions placed in the way of actually using the work.

Yes, certainly, part of that requires making sure that intellectual creators get paid for the work in the first place. I’ll deal with that in a moment. But the end goal, as I discussed in my first three essays, is society’s benefit. Remove that end goal, and all forms of intellectual protection like copyright, trademarks and patents start sliding into that black hole known as “natural property right.”

What’s “natural property right”? It’s the logic behind things like the increasingly vicious manner in which giant corporations are suing anyone else who uses their name for their own business—even if they name their business after themselves or were in operation before Gargantua Inc. was.

Many of these cases are utterly preposterous—but that doesn’t stop them from happening. First, because of the huge disparity in wealth and power that usually exists between the predator corporation and its prey. And, secondly, because the trend in modern intellectual rights legislation has been increasingly more restrictive of fair use, and increasingly friendlier to giant corporations and their ongoing intellectual land grab.

And what’s been leading the way in that land grab?

So-called “Digital Rights Management.”

For three centuries, there’s always been a seesaw both in society and the courts over the proper definition of fair use. It’s the advent of DRM that has tipped the balance so heavily against fair use.

Giant corporations have always been predators, it’s in the nature of the beast. You might as well expect a great white shark to become a vegetarian as expect Megacorp to run its affairs with any goal in mind other than maximizing their profits and to hell with anyone else or society as a whole. In fact, most economists going all the way back to Adam Smith will argue that’s what businesses should do.

Well, maybe. I won’t get into that, because the subject as a whole would take us far afield of the specific purpose of this column. But I will say this:

Be careful what you wish for. You may get it.

I read an amusing article once, written by a psychologist, in which he examined corporations as if the legal status they enjoy as “individuals” were actually true. His conclusion was that although small corporations usually had the personality imprint of their owners, who directly managed the business themselves, once corporations got big enough that connection became severed and “the corporation” developed a distinct personality of its own.

And it was, almost always, the personality of a sociopath.

Quite literally. Giant corporations have all the defining character traits of a classic sociopath. The main ones being:

a) An inability to see other human beings as human beings, instead of objects. (In New Corporatespeak, these objects are called “consumers” if they are customers, and “associates” if they are employees—especially employees being paid minimum wage.)

b) An inability to empathize with any pain another person might be suffering.

c) In particular, an inability to empathize with any pain another person might be suffering as a result of the sociopath’s own actions.

d) A bottomless capacity for self-justification, no matter how absurd.

d) Finally, the willingness to inflict any level of pain on others, including extreme pain, for the pettiest gain. Just as a sociopath is willing to shoot someone to get $15 from their wallet.

So it is. But until DRM came along, these titanic sociopaths were kept fairly well leashed and muzzled, when it came to copyright.

No longer. Giant corporations seized on the advent of digital media as a excuse to launch a massive assault on the fundamental principles of copyright that have served our society well for three centuries, in order to replace it with concepts derived from the theory of “natural property right” that benefit no one except themselves, and are an increasing burden on society.

How did they do it? By advancing the claim that digital media eliminates the second of the two reasons that, traditionally, kept copyright owners from being too concerned about fair use.

Remember my cartoonist, toward the beginning of this essay? I said that there were two reasons he wouldn’t object to someone posting a copy of one of his cartoon strips on their office door.

The first was because, given the former state of copyright law, he couldn’t have done anything about it anyway. That kind of “infringement” was well understood to be fair use.

But the second reason was much simpler. It was to his personal benefit in the first place. He’d have to be a cretin to object.

Unless they are absolutely incapable of thinking clearly—which some are, admittedly—cartoonists and writers have always understood that, from a commercial standpoint, the principal effect of fair use has been to increase their public visibility. And thereby, indirectly if not directly, increase their income.

I mean, this is not rocket science. If a cartoonist’s strips start appearing regularly on office doors, or bulletins boards, or tool boxes, what happens? A certain percentage of the people who look at it for free like it so much they start following that cartoonist regularly. And wouldn’t not have done so, without that fair use, for the good and simple reason that they didn’t even know the cartoonist and his work existed in the first place.

If an author’s books are readily available in public libraries, what happens? Well, gee, it doesn’t require a knowledge of advanced mathematics to figure it out. Some of the people who first get exposed to an author from library books, or used books, or books lent by a friend—all of which are traditional examples of fair use—will start buying that author’s work.

If not immediately, then at some point in the future. Fair use is and always has been most important for those members of society who are strapped for resources. Youngsters, first and foremost, who usually can’t afford to buy books at all, or at least not very many.

I do not know a single person who regularly buys fiction—including me—for whom the following statement is not true:

They got introduced to many of their favorite authors through fair use. Most commonly, from reading a library book.

Let’s take me as an example. I first developed an interest in science fiction at the age of twelve, from reading three novels: A Citizen of the Galaxy, by Robert Heinlein; Space Prison (originally published as The Survivors ), by Tom Godwin; and Star Rangers, by Andre Norton.

Of those three titles, only one of them was purchased in a way that generated direct income for the author. That was Heinlein’s A Citizen of the Galaxy, which my mother bought and gave me as a birthday present. Heinlein would have derived a small amount of his royalties from that sale. (Very small, to be sure, but that’s how authors make their living, from the small royalties from a lot of sales.)

The other two I acquired through fair use. I found Norton’s Star Rangers in my high school library, and I bought a used copy of Godwin’s Space Prison .

I want to spend some time on the last of these examples, the Godwin title, because it’s a perfect illustration of the way that fair use has a serendipitous effect that, in the long run, greatly benefits intellectual creators like authors. In fact, as I will argue in a later essay, fair use is absolutely vital to an author’s income.

I first read Tom Godwin’s novel at the age of twelve. I had as much influence and power over society’s workings in those days as any twelve year old has. Which is not quite zero, but so close to it you’d need the social equivalent of an electron microscope to find it.

Forty years later, things had changed. I certainly wasn’t what you’d call one of the world’s movers and shakers, but at least in the field of science fiction I now had a measurable amount of influence. By then, I was a successful author and editor, and publishers—Jim Baen, anyway—was willing to provide me the money I needed to do something I’d wanted to do for a very long time.

That was to reissue the works of those authors I most liked, whose works had largely gone out of print, that I had first encountered as a teenager—all of whom I first encountered through fair use.

The project began in the year 2000, with the first of what would eventually be a seven-volume reissue of the complete works of James H. Schmitz: Telzey Amberdon. That book is still in print, by the way, as are all seven of the volumes. Yes, that’s a shameless plug, which I am cheerfully using this essay to make in my own personal interest. As editor of the reissue, I get a small share of the royalties from every sale of that book.

If anybody reading these essays thinks I’m not a working author and editor who is fully and completely aware that my livelihood depends entirely on copyright, you’re not living on this planet. I’m writing these essays for two reasons. First—and foremost, yes—because I think the issue is important for society. But the other reason I’m doing it is because, like all intellectual work of this kind, there are thousands of avenues by which income trickles into an author’s wallet. And this is one of them—even though I’m not directly earning anything from these essays.

Not only did I, as an editor, reissue all of James Schmitz’s writings—almost all of which were out of print, and the few stories still in print were in small print run collector’s editions. As an author, I also wrote (with Mercedes Lackey and Dave Freer) a sequel to Schmitz’s best-known novel, The Witches of Karres.

Yes, that’s also still in print. Selling quite well, in fact. The title of it is The Wizard of Karres and you can find it in almost any major bookstore in the United States. It’ll be filed under Misty Lackey’s name, since the credits read Mercedes Lackey, Eric Flint and Dave Freer.

(I love shameless plugs. Yes, I can do that—because I’m writing this essay. That’s how it works. With intellectual labor that can be easily duplicated, the distinction between “I got paid” and “I didn’t” is a lot more complicated than it is for someone who sells hardware.)

Keep in mind that because Schmitz’s original novel is still under copyright, his estate receives a portion of the royalties that Wizard of Karres earns, even though Schmitz himself didn’t write a word of it. And the book is selling well enough that Baen Books gave Dave Freer and me a contract to do another sequel. That will be titled The Sorceress of Karres, and—yup—the Schmitz estate will get some money from that too.

I’m also in the process of editing a reissue of most of the works of Christopher Anvil, at least four volumes of the works of Murray Leinster, almost everything Keith Laumer wrote before he suffered his stroke and the quality of his writing went to pieces—and, in 2003, Baen Books published a one volume reissue of Tom Godwin’s best writings, which I edited. (That’s The Cold Equations & Other Stories and it’s still in print also.)

As I said, that’s how it works. A book read by a twelve year old who could only read it because of the fair use provision in copyright law, became translated four decades later into a reissue of the best works of an author who’d been almost forgotten by the world at large, and almost none of whose works had remained in print after his death in 1980.

Of course, someone can now object that I’m cherry-picking my examples.

No, actually, I’m not. To be sure, these examples are very improbable, taken by themselves. How many twelve year old boys, after all, become authors and editors successful enough forty years later that they can do something like this?

“Like this,” in the sense of these specific authors, very few. But if you step back and look at publishing as a whole, the answer is that all editors—and probably all publishers—started off as twelve year old readers. And all of them, except for perhaps a tiny handful who were born into wealthy families who gave them very large allowances, first developed their reading interests using one or another of the fair use provisions of copyright law.

It’s true that you can’t predict the way any given little stream of water will flow across a sloping landscape, if there aren’t any pre-existing waterbeds. But you can predict with absolute certainty that if you pour water onto a sloping landscape, featureless as it may be, it will all flow downhill.

So it is with fair use. No author—nor the cartoonist of my opening example—can know ahead of time which specific instance of fair use of his work will wind up personally benefiting him. But what all authors—and all cartoonists—can know for sure is that a society that allows a generous and expansive amount of fair use will produce the most expansive market for them all.

To be sure, lately many authors have gotten panicked enough by the endless drumbeat concerning “digital piracy” that they’ve abandoned that solid old-fashioned logic and are today following the Pied Piper of DRM. But that’s their problem, not mine.

This essay is now long enough that I need to break off. Here’s the closing point. The claim made by the giant corporations who launched the assault on copyright and have been the mainstay of the campaign is this:

 

The advent of digital media makes it so effortless to copy an intellectual creator’s work that traditional notions of “fair use” have to be abandoned. In today’s world, any sort of “fair use” will inexorably and inevitably lead to wholesale violation of copyright.

Therefore, fair use must be banned entirely—or, at a bare minimum, have tremendous restrictions placed on it.

 

To paraphrase the charming words of Mary McCarthy, every word in the above statement is a lie, including “the” and “and.”

I will spend many essays on this subject—that is, the practical side of dealing with the challenges of electronic publication. In the course of them, I will demonstrate that the advent of the digital era poses no genuine threat to legitimate copyright and there is absolutely no reason to abandon the practice of fair use as it has developed in our society over the past three hundred years.

“Digital Rights Management” is itself a lie. All three words in it.

The term “digital” is an excuse—a scapegoat, rather—and the term “rights” is laughable, since what’s really involved is quasi-feudal monopolistic privilege.

But the biggest lie is in the last word. “Management.” The reality is that the only reason giant corporations insist on DRM is because they are run by grossly overpaid executives who have demonstrated over and over again that they are utterly incapable of properly managing their businesses.

The corporations themselves, psychologically speaking, have the mindset of sociopaths. What makes it still worse is that they are run by people who are either lazy, or stupid, or incompetent—and often enough, all three put together.

 

 

 

Salvos Against Big Brother:

Lies, and More Lies

 

 

In my last essay, I ended by saying that the claims made today on behalf of DRM—that stands for “Digital Rights Management”—can be summarized as follows:

 

The advent of digital media makes it so effortless to copy an intellectual creator’s work that traditional notions of “fair use” have to be abandoned. In today’s world, any sort of “fair use” will inexorably and inevitably lead to wholesale violation of copyright.

Therefore, fair use must be banned entirely—or, at a bare minimum, have tremendous restrictions placed on it.

 

And I concluded by paraphrasing Mary McCarthy’s famous quip that every word in the above statement was a lie, including “the” and “and.”

Let’s start with “makes it so effortless.”

What’s being claimed here, by the proponents of DRM, is that because digital data can be processed by computers all of the traditional practical obstacles that made it difficult for someone to infringe copyright have vanished. “Online piracy” has therefore become rampant. If someone wants to produce a “pirated” version of an electronic text, they no longer have to have access to printing presses, nor do they need the financial wherewithal to operate them or pay someone else to do so. They can simply duplicate the text on their own home computer and thereby completely circumvent the need to pay the creator of the work under traditional copyright laws.

For this reason, DRM supporters claim, all electronic text must be carefully encrypted. That forces the prospective user, whether he wants to or not, to pay the creators of the product the money that is legitimately owed to them. Without the code to open the encryption—to get which, he must pay for the legitimate product—the “pirate” is out of business.

Furthermore, in order to prevent anyone from producing an illegal code-cracking mechanism, severe penalties must be levied against any such activity. And finally—oh, they’re a thorough lot, these sweethearts—any product or activity that might be used to “pirate” an electronic text must be banned also.

An aside here, before I continue. In the paragraphs above, I put the terms “pirate” and “piracy” and “pirated” in quotation marks. And I will continue to do so throughout these essays.

That’s because the terms are another lie. They are words which—I speak as a professional author of fiction, here, who makes his living working with words and manipulating them consciously for a desired emotional effect on the reader—are consciously and deliberately designed to obfuscate the real issues involved by substitute hysterical terminology for rational discourse.

Piracy?

That’s preposterous. Piracy is a crime that involves such things as:

Murder.

Rape.

Arson.

Armed robbery.

To claim that an author or publisher has been “subject to piracy” because someone infringed their copyright is grotesque. They have suffered absolutely no physical damage, pain or indignity whatsoever. Their property as such has not been destroyed in any way, shape or form.

They’ve simply suffered what amounts to a theft. And even leaving aside the absence of any weapons being used, the term “robbery” cannot be applied because the theft involved is so petty.

How petty? As an author, I can tell you exactly how petty it is, taken one instance at a time.

Like most authors nowadays, I make most of my income from the royalties earned by my hardcover titles. I leave aside the money paid in the form of an advance, because an advance is simply an advance against royalties. It’s always royalties that are the ultimate determinant of an author’s income—as any author whose advances fail to earn out too often will quickly discover when the publisher refuses to buy any more of his books.

How much do I make in the way of royalties? The way they’re calculated in my contracts—and these are the standard contracts used throughout the commercial fiction industry—are as follows:

For sales of any hardcover book up to a total of five thousand copies, I am entitled to 10% of the retail price of the book. The cover price, that is, not whatever lower price to which a given retailer might have discounted the book. (There are a few exceptions, such as what are called “remaindered copies,” but that’s a side issue that doesn’t play any role here, so I’ll ignore it.)

For sales of any book between five thousand and ten thousand copies, I am entitled to 12.5% of the retail price of my book. And for any copies sold above ten thousand, I am entitled to 15%.

Except for a tiny number of top-selling authors, that’s where the cap lies: at fifteen percent. Whether a given title of mine sells 10,001 copies or 100,000 copies, I will make 15% of the retail price from each sale.

Okay, now let’s translate that into dollars and cents. The cover price of hardcover fiction titles varies a bit, but it’s fair today to put $25.00 as more-or-less the standard price.

Even at the top 15% tier, in other words, a theft of one of my books causes me loss and suffering in the amount of $3.75. About what it costs to buy a cheeseburger and fries at a hamburger chain like McDonald’s, or a large cappuccino at Starbuck’s.

So. Can you imagine the ridicule I would be subjected to if I demanded that a louse who stole my large cappuccino was a “pirate.” No different from a murderer, or a rapist, or an arsonist, or an armed robber?

Mind you, even the theft of a cup of cappuccino is a theft, sure enough. It’s against the law, and if the police catch the culprit he will be charged with a crime.

A misdemeanor, to be precise. Because when it comes to theft—assuming no violence is involved—the distinction between a misdemeanor offense and a felony is normally determined by the amount of money involved in the theft. And, in any municipality I know of, $3.75 falls way below the bar needed to turn a theft into a felony like robbery. Much less the equivalent of murder, rape, and arson.

Moreover, how many policemen in any city or town in the country are going to devote much effort to solving such a crime? And how many prosecutors are going to go all out to make sure the dastardly cappuccino thief is subjected to the full penalties provided for by the law?

Hopefully, none. I say “hopefully” because I think anyone with any sense at all realizes that police agencies and prosecutors have far more important problems to keep them busy. Such as real murders and real rapes and real instances of arson and armed robbery.

And yet it is exactly such a topsy-turvy misallocation of society’s policing resources that advocates of DRM and the panoply of laws that surround it are demanding. That’s why these liars —to call them by their right name—insist on using loaded and hysterical terminology such as “online piracy.”

Can you imagine the ridicule that would be showered on Starbuck’s Coffee if that company demanded that the theft of a cup of cappuccino or a caramel latte be placed in a special category and treated by police agencies as a serious felony? “Caffeine piracy,” let’s call it.

Every late night talk show host in the country would be making jokes about it. So would stand-up comics—and every person in the country who drinks coffee, for that matter.

Yet the claims made by DRM advocates are taken seriously. No jokes are made about it by comedians—and Congressmen solemnly nod their heads and vote for this chicanery.

Why?

Well, here’s where the next lie comes in. If you push a DRM enthusiast on the matter of their terminology, most of them will grudgingly admit that the hysterical words they use are…

Accuracy-challenged, let’s call it.

But they will then immediately advance a new argument. They will argue that while it may be true that each individual instance of “electronic piracy” is no more than a minor misdemeanor, the problem taken as a whole has assumed such gigantic proportions that it amounts to a “social felony.”

Mind you, this argument is not as silly as it seems at first glance. It is indeed true that many violations of the law which, on an individual level, are not taken too seriously by society, would be taken very seriously if they became a general habit practiced by a large section of the population.

For example, it is against the law to urinate or defecate in public. But, in the real world, nobody worries too much about it. Why? For the good and simple reason that it doesn’t happen all that often, and when it does happen it usually involves someone caught in a bad situation who found themselves forced to go off into the bushes somewhere to relieve their bladder or (more rarely still) void their bowels. If they are “caught” in the act, the person is more likely to be the subject of ridicule than of legal charges being pressed against them.

Now and then, to be sure, a particularly obnoxious instance of this crime occurs. A drunk, for instance, urinating against the side of a building in plain view of everyone. And, in such instances—if a policeman happens to be in the vicinity and spots the crime underway—the culprit might actually get arrested.

But let’s suppose, for a moment, that this activity became the common practice of a large section of the population. Hundreds of thousands of people—millions of people—relieving themselves anywhere they chose, every day. Urinating and defecating on other people’s property, on sidewalks, in parking lots, in schoolyards…

Oh, yes. Society would suddenly change its attitude on the matter. And correctly so, because leaving aside any issues of propriety if a very large number of people started urinating and defecating anywhere they felt like it, you’d very soon have a serious problem of public hygiene on your hands. Epidemics would be the sure and inevitable result.

And that is the claim advanced by DRM advocates. Electronic piracy, they insist, has become a veritable epidemic in the land. And therefore this illegal activity—though it may be no more than a misdemeanor in any specific instance—has to be treated as seriously as a major felony.

So…

It’s really not that silly to call it “piracy,” after all!

Yes, it is silly. Because, once again, they’re lying through their teeth.

They’re lying twice over, in fact, because there are two lies involved in this claim.

The first lie ought to be obvious. DRM advocates are systematically obliterating the distinction in the real world between actual theft and what I will call “virtual” theft.

Remember: electrons are not molecules. If you get nothing else from reading this essay, do yourself a favor and memorize those four words. They will serve you well as a shield against hogwash.

Here’s what I mean:

Again, I speak as an author who depends entirely on royalties for my livelihood. If a thief goes into a brick-and-mortar bookstore and steals a molecular copy of one of my books—i.e., a “real book.,” with paper and ink and a binder—then I have indeed suffered a real loss.

The loss, by the way, is not so much in the theft itself. That’s because in most instances, the thief wouldn’t have bought the book anyway. So it’s not as if I lost anything from him.

The real loss to me derives from the fact that because real books are molecular objects, they weigh something and they take up actual space. That means, in turn, that no bookstore can afford to keep an unlimited number of copies on their shelves. Typically, in fact, except in the case of a very small number of top-selling authors, an author will have no more than one or two copies of a given title on the shelves of a bookstore, if he or she has any at all. And if that one copy is now gone because a thief took it, that means nobody else can buy the book until the bookstore eventually notices its absence and gets a replacement for it.

Which takes many weeks, usually two or three months. Many weeks during which a possible sale I might have made cannot happen because of the theft.

But electrons are not molecules. A virtual theft—which is what we’re talking about, when someone downloads an electronic text without the permission of the author or publisher—has no such equivalent effect. The thief—excuse me, the “pirate”—has indeed swiped something from me. But unless he would have paid for it otherwise, which is a highly dubious proposition, I have not actually suffered any material loss. Why? Because his theft does not in any way prevent a legitimate purchaser from buying the product—nor does it cost me anything to replace the stolen virtual product.

That last point is very important. If you think about it, in what sense has even a petty theft occurred—when nothing material has been taken?

The answer is: in no meaningful sense of the term that doesn’t make hash out of the English language. The fact is that not only is it absurd to label electronic copyright infringement as “piracy,” it’s even absurd to label it as “theft.”

That doesn’t mean that copyright infringement isn’t a crime, because it is. What I am pointing out is simply that DRM advocates are constantly mutilating both the language and basic legal concepts in order to swindle the population into supporting them. What they are doing is no different than if a man demanded that a neighbor of his who walked across his lawn without permission be charged, not with trespassing—which he did commit—but with “grand theft, personal space.”

Again, if such a case became widely known to the public, you can rest assured that late night talk show hosts and stand-up comics would be making jokes about it. But when DRM advocates advance exactly the same twisted logic, they are taken seriously.

This is one of the favored tactics used by DRM advocates. Constantly, in every way possible, they find ways to distort the issue by what you might call semantical inflation. Copyright infringement becomes “theft,” and “theft” becomes “piracy.” By this means, a problem which in the real world—as I will demonstrate in later essays—is no more than a petty nuisance, becomes transformed into an impending social catastrophe.

Again, this is not rocket science. If DRM advocates wish to argue that “online piracy” has become so widespread that they are in fact suffering tremendously from the phenomenon taken as a whole, then…

Goddamit, they have to prove it. They cannot—as they do now—simply point to the existence of many instances of unauthorized downloading of their product as if, by itself, that substantiated their claim.

Sorry, it does not. In fact, claiming that it does is ridiculous. People have been “downloading” copies of books for centuries without paying the author or publisher a penny for the privilege. They do it every time they check a book out of the library, every time they buy a used copy instead of a new one, every time they lend or borrow a book from a friend.

Traditionally, that was considered fair use. And—miracle of miracles!—somehow authors and publishers managed to make a living for centuries despite all of this activity. In fact, as I will argue in later essays, the activity itself was critical to their ability to stay in business in the first place.

Remember my last essay? I told you then that what was involved in this swindle was that DRM advocates are trying to get fair use eliminated altogether. And now you can begin to see how it works.

To be sure, DRM advocates advance a few claims that purport to “prove” that the phenomenon of widespread unauthorized downloading of their product—“virtual theft,” to use my term—does indeed cause them tremendous losses. The most commonly known instance of such a “proof” is the claim constantly trumpeted by the music recording industry that their profits are down—and therefore “electronic piracy” must be the cause.

From the standpoint of logic, this claim is so laughable that any student in a college course in logic who advanced it would get flunked from the course. It’s a perfect example of that error in logic which is called post hoc, ergo propter hoc —and it’s usually the first form of logical error that an instructor will discuss, because it’s the crudest.

The Latin phrase, roughly translated, means “after which, therefore because of which.” In other words, it’s the notion that because Phenomenon B happened after Phenomenon A, it must have been caused by Phenomenon A.

Oh, sure. That makes sense! For instance…

A little while ago, in the course of a long road trip, I got a speeding ticket just outside of Dodge City, Kansas. It happened after I spent the night at a Holiday Inn motel.

Therefore… Holiday Inn was responsible.

Uh, no. I got the speeding ticket because it was a long, straight road with almost no traffic where going 77 miles per hour was perfectly feasible as a mechanical proposition, even if it was twelve miles per hour over the posted speed limit, I’d been driving for hours and wasn’t paying much attention to the speedometer, and—the rotten bastids—the local cops were lurking in ambush with a radar gun.

Oh, the possibilities are endless, using this specious form of logic. Nor do we need to restrict ourselves to petty, personal issues. No, no!

For instance…

There was at the time and still remains an enormous range of opinion regarding the Vietnam War. Still, most people today—from whichever angle they approach the matter—will agree that it was very unfortunate that the United States got involved in the first place.

Now—a roll of drums here, please—Eric Flint will finally advance an explanation for why that unfortunate event happened, that everyone will surely agree with, regardless of whatever else they might think about the war.

After long and careful study, I have determined that U.S. involvement in Vietnam clearly happened after the Andrews Sisters became a popular singing trio.

So. The truth is finally out. The Andrews Sisters caused the Vietnam War. You can blame them for the whole business.

Granted, the claim advanced by the music recording industry that the wide spread of such things as Napster caused their decline in profits isn’t as patently ridiculous as the two examples I used. That’s because, at first glance, there would indeed appear—possibly—to be some connection between the two phenomena. They both involve music, at any rate.

But it’s still just about as ridiculous as my examples. Why? Because the profits a company makes are determined by a multitude of factors. That being so, how in the world can the music recording industry make the claim that “piracy” was the cause of the decline in their profits?

The fact is, they can’t. The fact is—as I will show in later essays—it is far more likely that Napster helped sustain their profits, rather than sapping them. For the good and simple reason, to summarize quickly what will be a long and detailed analysis, the entertainment market is so opaque to its customers that any method that enables customers to penetrate the fog, such as file sharing, makes them more willing to buy products of that industry, not less willing.

By the way—this gives you another illustration of how sleazy DRM advocates are—the logic of post hoc ergo proctor hoc, as fallacious as it is, doesn’t even support them in the first place. The music recording industry’s endless drumbeating on the subject of the nefarious effects of Napster is designed, among other things, to obscure the fact that the big decline in their profits happened after Napster was legally banned.

But I’ll come back to that subject later. For the moment, let’s return to the matter directly at hand.

Which is not complicated. All—each and every one—of the arguments advanced by DRM advocates to substantiate their claims that “electronic piracy” is a major social problem, is based on what can, at best, be called circumstantial or anecdotal evidence.

They have yet to prove, in any way that would be accepted in an introductory course in logic, that “electronic piracy” hurts anyone at all.

Yes, that’s true, as astonishing as it may seem. These people—these rapacious giant corporations, to name the ultimate villains—have been successfully waging an assault against basic principles of copyright that have benefited society for centuries, without ever once proving that there was any need for their measures—or that the problem those measures are supposed to solve even represent serious social problems to begin with.

“Astonishing” is the right word for it, too. You would think that any one who stepped forward and demanded that society had to radically change long-established laws and customs would, at a bare minimum, have to prove that there was a problem that needed to be addressed in the first place.

But they have not done so, nor—to their disgrace and the disgrace of the republic—have any but a few of the country’s legislators insisted that they must do so. Instead, time after time, Congress has passed whatever new legislation was demanded by these corporations, on nothing more substantial that the say-so of the corporations themselves.

L’etat, cest moi was originally the boast of the King of France, Louis XIV—the famous “Sun King” of the so-called age of absolutism. Supposedly, we abandoned all that feudal garbage centuries ago. But, today, the executives of the music recording industry and the movie industry could advance the same boast.

We say it is true, therefore it is true—and you, our lackeys in Congress, must do our bidding.

My essays focus primarily on the publishing industry, however. And, to my momentary relief, although the publishing industry has been more-or-less tagging along in the wake of the Blackbeards and Morgans who run the music and movie industries—I can play this pirate game, too—the operative term is “tagging along.” Publishers haven’t been leading the charge, and not only are many of them very uneasy about it, but several university publishers and one commercial publisher have already stood forthrightly in defense of traditional copyright practice.

Of the university presses, whose practices and experience I will analyze in later essays, I think MIT Press can legitimately take of pride of place. And the one commercial publisher was my own, Baen Books.

The founder of Baen Books, Jim Baen, died three months ago. I said at the time in my editorial regarding his death that I thought—I certainly hoped—that someday he’d be well remembered for the crucial role he played in defeating the assault on copyright laws and principles.

He certainly should be, because—this brings me to the last of the lies I will dissect in this issue’s essay—the stakes involved go far beyond any narrow concerns regarding copyright.

This final lie is the following:

We need to encrypt our electronic text because otherwise it will be stolen.

That statement is a lie, from top to bottom—and the people who advance the lie know it perfectly well.

The reason it’s a lie is because—ask any author, editor or publisher who isn’t a nitwit—everybody in the publishing industry knows perfectly well how “online piracy” actually happens.

It does not happen by some genius hacker figuring out how to crack whatever fiendishly clever code publishers might use to encrypt their text.

Why bother? The way “electronic piracy” actually happens is that the Fu Manchu arch-villain involved goes out and obtains a paper edition of the book to be “pirated,” runs it through an OCR scanner—which you can buy for a couple of hundred dollars or less in electronic stores all over the country—and, voila, the “piracy” is done. Professor Moriarty has struck again.

The whole world saw a perfect illustration of this truth not long ago. The wildly popular author J.K. Rowling, apparently because she was deeply concerned over the possibility of “electronic piracy”—and because she apparently was incredibly ignorant of the realities of the publishing industry—refused to authorize any electronic edition of her most recent Harry Potter novel.

The perfect encryption, you’d think. The ultimate, unbeatable code.

Oh, what a laugh. By dawn of the first day her book came out, there was a “pirated” copy available on the internet. Literally, by the time the sun came up. What happened was what always happens. Somebody was obviously standing in line to get a copy of the book as soon as the stores made it available—which many bookstores did at special midnight opening sales, the book was so popular—bought it, raced home and copied it on an OCR scanner and uploaded the resulting file onto the web. In this instance—which is rather uncommon—they even did a fairly decent job of proof-reading the text and getting rid of most of the typical OCR scanning errors.

How are you going to prevent this by encryption?

You can’t. It’s as simple as that. You cannot.

Unless…

You start shredding the most basic political freedoms of a modern society.

Unless…

You start placing severe restrictions on everything that involves the production and distribution of text.

Computers must henceforth be registered and monitored. All computers must have software that allows the authorities to inspect them to make sure that no unauthorized use of copyrighted text has taken place.

While we’re at it, the same must be true for all OCR scanners or any other electronic device that allows anyone to copy text in a way that might lead to violations of copyright.

For that matter, all PAPER books must have chips built into them that allows the authorities to track all books. That’s really the only way to put a stop to this nefarious piracy.

If you think I’m joking, I am not—and each and every one of these proposals has already started being bruited about, in one way or another.

That’s what is really at stake, in the end, with DRM. Nothing less than the right of free speech itself. Because the reality is that all the encryption being used by publishing houses is ultimately pointless—and they know it perfectly well.

So why do they do it? Well, in the case of the publishing industry, the most common reason is stupidity, and it descends from there.

Being fair about it, the stupidity involved is not low intelligence, as such—the average author, editor and publisher is normally a rather bright person—but functional stupidity in the sense of persisting mulishly in a form of pointless behavior simply because you can’t figure out any alternative and you’re too stubborn or peeved or just plain lazy to sit down and think.

Almost everyone is guilty of that form of stupidity, at one time or another. We’ve all done it, sure enough. Being stumped by the task of getting a malfunctioning machine to start working again, we keep kicking it in the hopes that somehow—by who knows what mechanical magic?—the damn gadget might start working again.

From there it descends to the next level, which is pure and simple spite. This may seem silly, but I can assure you from my extensive discussions with people in the publishing industry—authors, editors, publishers—that a great deal of the emotional force behind insisting on DRM is simply childish spitefulness.

It’s about on the level of a street gang mentality, except the vocabulary is fancier. It amounts to this:

That sonuvabitch PIRATED my book. He DISSED me! I’ll GET him for it!

Honestly. It’s no more sophisticated than a schoolboy getting into a fistfight because another schoolboy disrespected him in some way or other—or, at least, was thought to have done so. Whether or not the disrespect involved, assuming it even existed, caused any actual harm to the belligerent lad.

Yeah, I did it too. I got into quite a few fistfights in high school, most of them over the silliest things you can think of.

But that was then, and this is now—and I’m now well into middle age, and I haven’t gotten into a fistfight in decades. I like to think, at least, that the term “maturity” isn’t completely meaningless.

Is it really too much to ask authors, editors and publishers to act their age? Is it really too much to insist that they react to electronic copyright infringement—yes, it does happen, and yes, it’s certainly annoying on a personal level—by using their brains instead of their gonads? Is it really too much to demand that, if they advance a certain course of action, they have the minimal adult responsibility of gauging its potentially disastrous effect on society as whole?

I mean, give me a break. These people all work in the publishing industry, which means they make their living by using words, in one way or another. So they have no excuse at all, where movie producers might since there is considerable evidence that they don’t read anything except comic books and spreadsheets.

Which one-syllable or two-syllable word in the following sentence does any author, editor or publisher not understand?

Do not call for a cure that is worse than the disease.

Presumably, not one. Yet that is exactly what most publishers are demanding today—along with, I’m sorry to say, most authors and editors.

****

All right. Enough for the moment. In my next essay for this column, I will pick up where I left off toward the beginning of this one.

Is it true that modern electronic devices have made copyright infringement “so effortless” that it has become—or threatens to become—a serious menace to legitimate copyright owners?

The answer is “no.” In the next issue, I’ll explain why.

 

 

Salvos Against Big Brother:

There Ain’t No Such Thing as a Free Lunch

 

 

I ended my last essays as follows:

 

Is it true that modern electronic devices have made copyright infringement “so effortless” that it has become—or threatens to become—a serious menace to legitimate copyright owners?

The answer is “no.” In the next issue, I’ll explain why.

 

The reason the answer is “no,” in a nutshell, is encapsulated in the sub-title of this essay: There ain’t no such thing as a free lunch.

That colloquial expression captures a fundamental economic truth. Nothing that requires labor to be performed is really “free.” You’re going to pay for it, one way or other. Either by performing unpaid labor yourself, or by paying someone else for it. If not directly, then indirectly.

The real difference between a toll road and a “freeway” is not that a toll road costs you money and a freeway is “free.” It most certainly is not “free.” That freeway was built and is maintained by the taxpayers’ money. The only difference, from the standpoint of cost, is how the money is collected. In the case of toll roads, it’s collected directly from the users in the form of tolls. In the case of a freeway, it’s collected from the entire population in the form of taxes.

Let’s now apply that economic principle to crime. Whatever else it is, crime is also labor. In some cases—what are often called “crimes of passion”—that fact is simply irrelevant. But it is not irrelevant at all when the crime involved is one that is either motivated by a desire for profit, or simply profit’s poor second cousin, the desire to eliminate a cost to yourself.

To give an example, most shoplifters do not steal in order to resell at a profit. They steal for their own use—but it’s worth the risk to them because they eliminate the cost of paying for the stolen item. The thief’s equivalent of the old saw, “a penny saved is a penny earned.”

And that’s what drives most—not all—electronic copyright infringement. People do not generally “pirate” an electronic text in order to sell it for a profit. They do it in order to get the text itself, for their own use.

There is one major exception to this rule. But that involves people who can operate openly on a mass production scale in countries which do not enforce international intellectual property rights. And the only thing I’ll say about that here is that all the arguments advanced by DRM advocates are silly when you’re dealing with this one (and only) instance of mass-scale piracy. For the obvious reason that the only conceivable way to enforce the law is to somehow cajole or coerce the authorities in a foreign country to do it. You might or might not be able to do that, but if you can it certainly won’t be due to DRM laws which are such a burden to the population in countries which do respect intellectual property rights.

I said “not all” electronic copyright infringement is due to the motive named above, because there is a peculiar variety of a “crime of passion” that you do encounter in this area. There are some people out there, possessed by the firm delusion that “information wants to be free”—as if bits of data had legs and went walking about on their own—who see the deliberate violation of copyright as striking a blow for freedom.

But there aren’t many of them, and, taken by themselves, their actions don’t amount to more than a social nuisance. Yes, it’s irritating to authors to see their work posted up on the internet without their permission, especially when the deed is accompanied by a virtual raspberry from a super-annuated juvenile delinquent bragging about it. But the fact remains that the material damage done to authors by such activity is so minimal that it can barely be distinguished from zero—if there’s any material damage at all, which I doubt.

I am not guessing about this. The reason I initially put up my first novel for free online was because I got fed up reading the hysterical howls of some authors in online discussion groups, shrieking that their livelihood was being mortally threatened.

To prove that was nonsense, as graphically as I could, I put up one of my own novels for free. “Pirated myself,” if you’ll allow me the absurd expression. That novel, Mother of Demons, has been available online for free for almost seven years now. And…

It’s still in print, and still keeps selling.

Soon thereafter, with Jim Baen’s co-operation, we set up the Baen Free Library on Baen Books’ web site, which now has dozens of titles from many authors made available for free to anyone who wants them. (If you’re not familiar with the Library, you can find it by going to Baen Books web site—www.baen.com—and selecting “Free Library” from the left side of the menu across the top.)

The titles are not only made available for free, they are completely unencrypted—in fact, we’ll provide you free of charge with whatever software you’d prefer to download the texts. We make them available in five different formats.

And…

The sky did not fall. To the contrary, many of those books have remained in print and continued to be profitable for the publishers and paying royalties to the authors. For years, now, in some cases. Included among them is my own most popular title, 1632. I put that novel up in the Baen Library back in 2001—six years ago. At the time, the novel had sold about 30,000 copies in paperback.

Today, six years after I “pirated” myself , the novel has sold over 100,000 copies.

In the face of examples like this—and this is but one example—all arguments that “online piracy” guts legitimate sales are exposed as pure and simple blather. In point of fact, the exact opposite is true. The real effect of making books available for free in electronic format is that it keeps stimulating sales of the paper editions—which is where 95% of the money is, anyway, from an author or a publisher’s standpoint.

I’ll deal in a later essay with the issue of what would happen if electronic reading became the dominant or even exclusive form of book reading. But we’re a long way from that point today. Despite the continually rosy projections regarding electronic books, the crude fact is that the reading public has stubbornly resisted them and, year after year, continues to demonstrate its great preference for “obsolete” paper books. That’s because book-buyers are not morons, as I’ll discuss below.

The reason that Baen’s policy regarding electronic publishing works goes back to the economic principle in the subtitle: There ain’t no such thing as a free lunch. We start off by recognizing that—and recognizing it from sides of the equation.

Here’s one side of the economic equation. Our Captain Morgan wannabe “pirate,” when he sets out to swipe an electronic book by downloading an illegal edition rather than paying for a legal one, has to do the same thing any criminal does, except people engaged in crimes of passion. He has to consider whether the amount of labor involved for him is worth the end gain.

One of the things I find genuinely bizarre about this debate is the constant assumption of my opponents that people will do anything just in order to get something for free. It’s incredible—since that proposition is tested every single day in America by millions of people, and proven wrong over and over again.

Don’t believe me? What do you think sustains toll roads, to name just one example? If people were willing to do anything —expend any effort, for any length of time—just in order to avoid paying a few dollars for something, then why does anyone ever use a toll road in the first place? With the exception of a few places—an island, for instance, that can only be driven to across a toll bridge—it is perfectly possible to drive anywhere in the United States without ever paying a thin dime in the form of road tolls.

But, generally, doing so takes more time—and time is money. On some instinctual level, if nothing else, most people understand that. Every extra hour you spend behind the wheel of a car going from Point A to Point B is an hour you’ve lost either from paying labor or simply from your lifespan. Unless you have another motive for spending that time—sight-seeing, for instance—you’re generally quite willing to pay a modest toll in order to get where you’re going a little faster.

Now apply that toll road principle to the problem of electronic copy infringement. It is absolute nonsense to claim that “pirating” an electronic text means that you got it for “free.” Uh, no, you didn’t. You may have saved some money—but you did it at the expense of spending time and labor to circumvent the legal process. Your time and labor—not the victim’s.

In the real world, criminals do not do everything in a criminal manner. Whatever you or I think of their morals, they are just as capable as anyone else of gauging an enterprise from the standpoint of its cost-effectiveness.

Bank robbers do indeed rob banks. But here’s what they don’t do, or do very, very rarely:

They don’t illegally siphon gas from a neighbor’s car to fuel the getaway vehicle. Instead, they buy the gasoline.

They might steal the gun they’re planning to use to rob the banks, because guns are expensive. But they’re not likely to steal the ammunition—much less try to make the ammunition themselves. Why bother? They’re not planning to fight a war, they simply need enough ammunition to load a gun. So they buy the ammunition.

I would think the point is obvious. Pirates rob bullion ships, they don’t rob grain ships. Electronic copyright infringement is something that can only become an “economic epidemic” under certain conditions. Any one of the following:

1) The product they want—electronic texts—are hard to find, and thus valuable.

2) The products they want are high-priced, so there’s a fair amount of money to be saved by stealing them.

3) The legal products come with so many added-on nuisances that the illegal version is better to begin with.

Those are the three conditions that will create widespread electronic copyright infringement, especially in combination. Why? Because they’re the same three general conditions that create all large-scale smuggling enterprises.

And…

Guess what? It’s precisely those three conditions that DRM creates in the first place. So far from being an impediment to so-called “online piracy,” it’s DRM itself that keeps fueling it and driving it forward.

Let’s start with the third point. A DRM-crippled text is a royal pain in the ass for legitimate customers. First of all, because you have to have the right software (and often hardware) to use Product A as opposed to Product B—since the publishing and software industries can’t agree on a common standard. And, secondly, because you have absolutely no guarantee that next year those same industries won’t make the software you purchased from them obsolete and thereby make the books you bought unreadable.

Can we say “eight-track tape?” “Beta-Max?” “Vinyl LPs?”

The buying public, by now, has long and bitter memories of the way the entertainment industries have shafted them over and over again, by introducing one technology, forcing everyone to adopt it—and then scrapping that technology in favor of yet another.

It’s no wonder the reading public has so stubbornly resisted electronic reading. As I said above, they are not morons. Contrast the ridiculous demands that the publishing industry tries to place on their electronic text customers to the joys and splendors of buying a paper book:

You do not need an “end user license.” Nope. Just buy the book with legal currency and you own it outright.

You do not need to buy separate software or hardware to read it. Nope. The only “software” you need is a pair of functioning eyes and a knowledge of the language the book is written in. Thazzit.

You now own a product that you can do any damn thing you want with. You can lend it to a friend, donate it to a library, use it for a doorstop or to swat a fly.

And, finally, you are in possession of a product whose technological durability and reliability has been tested and proven billions of times, and for centuries. Even a cheap paperback, with any degree of reasonable care, will still be readable half a century after you bought it—whereas not one piece of software has yet demonstrated that it can last much more than a few years.

Now let’s move to the second point. Precisely because DRM has made electronic reading such a distasteful idea for most of the reading public—even a loathsome one, for many—it has strangled the market in its crib. Despite all the rosy projections and predictions, year after year after year, the electronic reading industry has remained miniscule compared to the paper book industry. Is it any wonder?

But certain things go along with that. If you can only sell a few units of a product, you will have to charge more per unit to cover your operating costs and hope to make a profit. So…

We now have the grotesque phenomenon where publishers typically charge more for an electronic book than they do for a paper book—even though everyone knows perfectly well that electronic texts are far cheaper to produce and distribute. That’s mostly because the distribution costs that typically swallow about half of all income generated by paper books sales—and a higher percentage for paper magazines—is relatively tiny for an electronic publication.

And, so, dragged by the inexorable logic of this DRM lunacy, we arrive back at point one. Because electronic books are disliked by most of the public, and are then further constricted in terms of the market by being over-priced, they also become relatively rare. And it’s probably rarity more than anything that fuels most book-stealing, whether of paper or electronic editions.

The truth is this. Books simply aren’t that valuable—in any format—that they’ll ever serve as a major target for criminal enterprises. That’s especially so because, with a very few exceptions, books don’t have the advantage of being sellable in large numbers. There’s a logic to criminals hijacking a truck loaded with cartons of cigarettes, even though any single carton isn’t worth much more than a book. But the sheer volume of the cigarettes involved makes up the difference—because they’re just aren’t that many brands of cigarettes to begin with, so they’re easy to sell. Whereas books…

There are literally hundreds of thousands—no, millions—of “brands” of books. No gangster with the brains of a squirrel is going to hijack a truck full of books. To whom and how would he sell them? Two books over here, one book over there, week after week….

The main reason people swipe books—or do the equivalent, like buying a paperback with a stripped cover that they probably know is not a legitimate copy—is simply because they can’t find a legal copy. Not, at least, for anything they consider a reasonable price or in a format they find acceptable. But if they could, they would, ninety-nine times out of a hundred.

On a cold-blooded economic level, it is the understanding I’ve laid out above that always guided Jim Baen from the beginning of the electronic publishing era. Jim always understood all this. (In fact, I learned a lot of myself from watching him and talking to him.)

From the beginning, Baen Books has always consistently followed a course of action that is diametrically opposed to the one advocated by DRM enthusiasts.

Baen’s policy can be summed up using the same three points I enumerated above:

1) Electronic editions of Baen’s titles are not rare. In fact, they’re almost ubiquitous. With less than a handful of exceptions—those usually involve contractual restrictions on electronic publication insisted on by a few estates—all Baen titles will be produced in an electronic edition as well as a paper edition.

2) The books are priced cheaply. Where most publishers insist on selling ebooks at a higher price than paperbacks, Baen sells them at a lower price—and a much lower price if you take advantage of their monthly Webscription service. You can buy a Baen title in electronic format for as little as $2.50—and almost no title is priced higher than $5.

3) Finally, the books are designed to be as user-friendly as possible. Baen will provide the text in any one of five popular formats, some of which are completely unencrypted. No restrictions are placed on the customer’s use of the book thereafter. They can do whatever they want with it, just as they can with a paper book.

Given all that, who is going to bother to steal a Baen title? How many people with enough intelligence to read a book in the first place are going to go through the time and effort to find a pirated edition of something that they could have obtained legally—very easily and quickly, at a stable and well-known web site—for five dollars or less? An edition, furthermore, which has been professionally prepared and doesn’t carry the same sort of frequent OCR-scanning errors that most pirated editions do?

Some, sure. There are always a few fruitcakes here and there. But not enough to ever be anything more than a minor nuisance, at worst.

The kind of thing you run across—very occasionally—is exemplified by a case that happened about four years ago. A well-meaning person sent me and Jim Baen a somewhat breathless email warning us that some rascal had taken one of the free CDs containing many electronic texts that Baen often distributes in hardcover editions and had put it up for sale on eBay for $100.

I called Jim on the phone to see if he wanted to do anything about it. Not to my surprise, however, his reaction was the same as mine. “Why the hell should I waste my valuable time trying to prevent someone from earning the Darwin award? If somebody out there is stupid enough to pay $100 to get an illegal copy of something they could have gotten perfectly legally by buying a $25 hardcover, let ‘em and be damned.”

My attitude toward so-called “electronic pirates”—these virtual Bluebeard wannabes—is one of cheerful contempt. Contempt, because they’re jerks. Cheerful, because their periodic vainglorious boasts about “destroying copyright” are the equivalent of so many mice chittering at an elephant.

Don’t bother pirating my books, you pipsqueaks. I automatically put all of them up for free online about three months after the paperback edition comes out anyway. Because I know perfectly well that I’m generating far more sales from the wonderful—and dirt cheap—promotional value than I’m losing to so-called “pirates.”

That’s the key to the whole thing—as we will see, again and again, in the essays which follow. The way you deal with the problem of electronic copyright infringement is not by a futile—and political dangerous—attempt to place greater and greater legal restrictions on the access of the public to reading material. The way you do it is by recognizing, cold-bloodedly, certain fundamental economic principles and guiding yourself accordingly. By doing so, you cut the ground right out from under the problem.

Two other things will happen if you do so. The first is that, in purely and immediately financial terms, you will generate a lot more income than you will by following the Pied Pipers of DRM. It is a fact that Baen’s way of selling e-books generates more income per unit sold for the publisher—and royalties for the authors—than the DRM methods used by other publishers. Those profits and royalties are still small, of course, compared to the profits and royalties earned by paper editions. But that’s inevitable, so long as the electronic market as a whole remains stunted and tiny.

The second thing is that you will generate a lot of goodwill among your customers, where DRM policies infuriate those same customers. And while it’s not easy to assign a precise value to “goodwill” in a balance sheet, no one with any sense doubts that it’s a very real—and major—asset for any business.

We couldn’t have launched this magazine without that asset. We knew from the beginning that we’d have an uphill struggle, trying to create a successful online science fiction magazine that paid better rates to authors than any other magazine, given the small size of the electronic market. But we also gauged that Baen Books had, over the years, generated enough goodwill and trust among its core customers that we could get the support we needed for the Universe Club—given that we’d be publishing the magazine along the same well-established anti-DRM principles that Baen has always done.

And so it proved. About half the income the magazine receives comes from the Club, with the other half being provided by subscriptions. That’s what has so far enabled us to weather this very hard initial period in the magazine’s existence—and the reason we’re confident we’re going to be successful in the long run.

Everyone should understand one thing, if nothing else. The only reason this debate over DRM as it applies to electronic text is still going on is simply because our opponents have what amounts to a quasi-religious and sometimes downright hysterical blind faith in the magic powers of DRM. As a test of competing business strategies in the real world of economic intercourse, the debate is over.

Finished. Done.

We won, they lost—and it was a rout.

 

In my next essay, I’m going to pursue this question further—by “question,” meaning the whole issue of how electronic publishing should be used. In this essay, I only dealt with it negatively, so to speak, by exposing the logical absurdities of the arguments advanced in favor of DRM. What I want to do next is look at the positive ways in which electronic publishing can—if you follow the right strategy—serve as a counter-balance to many of the difficult economic problems that are today facing the publishing industry and its authors and readers.

 

 

Salvos Against Big Brother:

Books: The Opaque Market

 

 

In my last essay, I approached the question of so-called online piracy from what I called a “negative” standpoint—by which I meant that I was content with knocking down the arguments advanced in favor of DRM. In this essay, I want to turn the problem around and approach it from a positive standpoint, by examining the many ways in which a non-DRM approach to electronic publishing can help the situation of authors and publishers.

Let me start by making two flat assertions:

1) The market for books is one of the most opaque markets in existence, from the standpoint of its prospective customers.

2) For every dollar an author or publisher might lose from electronic copyright infringement—what’s often given the dishonest and/or hysterical label of “online piracy”—they will lose at least a hundred dollars due to the opacity of the book market.

What do I mean by an “opaque” market? The concept is simple, and is closely related to the concept of information asymmetries as used by some economists. A lot of economic theory is based upon the presumption—the preposterous and absurd presumption—that the market is completely visible to consumers. To put it another way, applied to this topic, when Customer Joe or Jane sets out to buy a book, they know already all the books available on the subject they are interested in. Their choice between Books A, B and C therefore comes down to an informed choice based partly on price, partly on their preference in format (electronic or paper; and, if paper, hardcover or paperback), and partly on their own assessment of the relative talents and skills of the various authors who have produced books on the subject.

It’s enough to state the proposition for anyone to see how ridiculous it is. In the real world, the situation is almost diametrically the opposite.

According to R.R. Bowker, the company that compiles the Books in Print database in the USA, in the year 2003 there were approximately 175,000 new titles published in the United States. That’s one new book coming out about every twenty seconds. The figures for the UK are smaller but comparable—the best estimates are that more than one hundred thousand books are produced in Great Britain every year, in recent years.

That’s at least a quarter of a million new titles in the English language, published every year. And in case you were wondering—given the endless yapping about “the decline of reading”—the number is increasing, not decreasing. Over the past half century, since the advent of television—which many doomsayers insisted would destroy reading—the production of books has increased four-fold. That increase is faster than the population increase, by the way. World-wide, we’ve gone from about a quarter of a million books produced every year to a million, which translates into an increase from one hundred new books for every million people to one hundred and sixty-seven new books per million people.

To put this yet another way, if you read one book a day, you would be neglecting to read several thousand other books.

Of course, in one relative sense, this is still picayune production. A quarter of a million new books in English, every year? Oh, pfui. Piker stuff.

Iran alone produces twice that many new automobiles every year. Worldwide, the annual production of new automobiles was about sixty-three million in 2005. For every new book produced in the world, there were sixty-three new automobiles that came onto the market.

Yet…

That poses no insurmountable challenge, for a prospective car buyer who’s willing to put in a moderate amount of time to gauge the different products available on the market. Buy a few copies of Consumer Reports and similar consumer product magazines—maybe a book or two—and you’re done. You can confidently march out there and buy a new car—which will cost you at least $15,000 and more likely $20,000 or $30,000—with a fair degree of surety that you’ve made an informed choice.

But you can’t possibly do that with the much smaller number of new books produced every year—most of which will cost $25 or less, often much less.

The reason is obvious. Yes, there are sixty-three million new automobiles made every year, but there are only (in relative terms) a tiny number of models produced. The largest car manufacturer in the world won’t produce more than perhaps two dozen.

Whereas every new book is also a new model. Not completely, of course, since most books are generically rather similar to other books in any given field or subject of interest. Still, it is in the very nature of the book market that each and every one of its products is unique.

You literally can’t penetrate the obscurity of the book market. You’d have to spend every waking moment reading book reviews—and even that wouldn’t suffice, because the book reviewers themselves, all of them put together, can’t keep up with the production of new titles.

In short, the book market is just about as opaque as any market there is. I might mention, by the way, that this is not the least of the reasons that the fears of authors that they’ll get “pirated” are almost always just plain silly. With the exception of a tiny percentage of very well-known authors like J.K. Rowling or Stephen King, the realproblem authors face is that only a very small percentage of their potential customers have even heard of them —so how likely is it that the ravening hordes of electronic pirates are out there plundering their titles?

About as likely as a piano singer in a roadhouse bar in Oklahoma discovering that a pirated tape of her performance is selling like hot cakes all over the country. Just like they did to Maria Callas! —a delusion of grandeur upon which she piles more folly by demanding that the management of the bar has to physically search every customer who comes in to make sure they aren’t carrying concealed recording equipment.

Sound silly—almost insane? Yet, that’s exactly what DRM amounts to. A demand by every author who supports it—or their publisher—that their literary equivalent of a piano bar performance in an obscure roadhouse has to be protected from the customers by the electronic equivalent of a physical search.

Someone asked me once, in a debate, how I’d react if I discovered that one of my titles—maybe all of them!—had become widely pirated. I started by posing the most extreme case I could imagine.

“You mean, I walk into a drugstore and see that the latest copy of Time magazine has my face on the cover, with a title that reads ‘Works of Eric Flint pirated worldwide!’ and an article on the inside that tells everybody exactly how to do it?”

“Yes,” came the reply, demonstrating that my opponent was no wizard at the art of debate. “What measures would you take?”

“Well,” I said, “the very first thing I’d do is get on the phone and call my friend Mike Spehar. He’s a retired Air Force pilot, and I’d want his advice on which brand of private jet I should buy to be able to commute easily from the villas I’d be buying in southern France, the coast just south of Barcelona… Hm, maybe a penthouse in Manhattan and another one in Paris…”

It was like shooting fish in a barrel.

In the real world, the only authors—or musicians, by the way—who get “pirated” in any significant numbers are ones who are already famous and enjoy top sales. (And all the “piracy” is likely to do, even then, is simply boost their sales. See my next essay for a further discussion.) The great problem faced by all authors—musicians are in a very similar position—is the opacity of the book market. The entertainment market in general, actually, even movies. Compared to that problem, all others are fleas standing next to mammoths.

It is therefore absurd for an author or a publisher to support DRM, when DRM not only makes the market still more opaque, but—worse yet—it removes the best tool any author has today to penetrate that obscurity, at least a little.

This is the reason that, for years, I have made it a policy to put everytitle of mine online, available for free in electronic edition, a short time after the title comes out in a paperback reissue. Whatever tiny number of sales I lose from that policy, I gain ten or twenty from the promotional value of being a much more visible author.

This is not rocket science. Nothing amazes me more than observing the tremendous effort that many authors go through to promote their work—at a large cost in time and money, as well—when those same authors adamantly refuse to run the “risk” that one or another of their books might get “pirated” electronically.

The most common form of promotion that science fiction and fantasy authors undertake is to attend science fiction conventions, of which there are hundreds in the United States every year. In some instances, they are invited to be the Guest of Honor or the Toastmaster for a convention, in which case the convention pays the cost of their travel and lodging. But, in most cases, the authors are paying for it themselves. And even if the convention is picking up the tab, the author is still losing valuable work time.

Figure out the math. Assume the cost of the round-trip travel averages $400 and the cost of the hotel room is another $200 for a weekend. Toss in $100 for food and incidental expenses.

That’s seven hundred dollars. To make back that financial loss—remember my royalty figures in the fifth essay?—the author would have to sell a minimum of one hundred and eighty-seven books, over and above what they’d sell without that promotional trip. And that’s assuming that he or she gets published in hardcover, and it also assumes that their hardcover sales typically exceed ten thousand copies per title, so they’re getting the top 15% royalty rate.

In point of fact, neither assumption applies to most authors. For a new or midlist writer who is only getting published in paperback, where the royalties are eight percent of the cover price—i.e., sixty-four cents per copy sold, accruing to the author, assuming the standard modern paperback price of eight dollars—they would have to sell over a thousand additional copies of a book just to break even on that one promotional effort.

For the sake of promoting themselves and their work, science fiction and fantasy authors routinely accept—several times a year, as a rule, because they’re likely to attend more than one convention—what amounts to a financial loss that’s the equivalent of several hundred to more than a thousand paper books being stolen—yet they choke at the possibility that electronic “pirates” might swipe….

Twenty copies? Maybe? In my opinion, the figure is more likely to be half a dozen, if that.

And thereby!—piling stupidity onto an inability to do simple arithmetic—they also deprive themselves of a promotional method that is far, far cheaper and probably at least as successful.

Admittedly, I can’t prove it, because no-one has ever done the kind of study that would be necessary to do so. (And never will, either, since the cost of doing such a controlled study would be well-nigh astronomical.) But I know damn good and well that every title of mine that I put up for free online—at no cost to myself in money terms, and only a minute cost in terms of my labor—generates more sales for me than any convention I’ve ever attended.

An aside, here. I attend at least half a dozen science fiction conventions every year—but I don’t do it for the so-called “promotional value.” I think that value is a mirage, personally, and I urge any author who thinks attending conventions is a smart way to boost their sales to consider the cold math I laid out above. To put it as crudely as possible, you can’t begin to earn back the money you’re going to lose by boosting your sales. Yes, attending a convention will boost your sales. Sure, it will—by maybe one or two dozen copies. Fifty or a hundred, at most, assuming you’re the Guest of Honor and the center of attention.

But it’ll cost you more than that to attend the convention in the first place, even if the convention pays your expenses. Yup, it’s true—for the simple reason that, with rare exceptions, conventions want Guest of Honor who get published pretty often. And, for such an author, losing several days of working time in order to attend a convention is a financial loss that will exceed whatever extra sales your attendance stimulates. In cold-blooded economic terms, an author would be much smarter to just stay home and keep writing.

The reason I go to conventions has nothing to do with money, and promotion is only an incidental factor. The reason I go is two-fold. First, I enjoy them. Secondly, the one great drawback to being a professional writer is that you spend your entire working life talking to yourself. I’ve found it’s very good for me, emotionally and psychologically, to go off every couple of months or so and spend a few days talking to people I don’t know, and whom I didn’t invent, and whose reactions to me will be theirs and not mine.

That’s well worth the money—but it’s not the main way I promote my work. I do that online, by simply giving as many people as possible access to my books.

This is the way promotion has always worked for authors. It was not “invented” by the internet. All the internet and electronic publishing does is add another avenue to this way of promoting and advertising an author’s work, and a particularly easy and almost costless avenue.

This ancient and most reliable of all promotional methods is called “fair use”—and, if you’ll go back and look at my fourth essay in the December issue, you’ll see that I said the following:

 

It’s true that you can’t predict the way any given little stream of water will flow across a sloping landscape, if there aren’t any pre-existing waterbeds. But you can predict with absolute certainty that if you pour water onto a sloping landscape, featureless as it may be, it will all flow downhill.

So it is with fair use. No author—nor the cartoonist of my opening example—can know ahead of time which specific instance of fair use of his work will wind up personally benefiting him. But what all authors—and all cartoonists—can know for sure is that a society that allows a generous and expansive amount of fair use will produce the most expansive market for them all.

 

I said in that essay that I’d return to the subject of fair use from the standpoint of the benefit it gives authors as well as readers. And now, perhaps, you’ll begin to see how it works.

Again, it’s simple. The book market is so opaque that, willy-nilly, almost all book-buyers react by being extremely conservative in their buying habits. “Conservative,” at least, in terms of which authors they’re willing to spend money on, if not necessarily in terms of how much money they spend overall.

They simply have no choice. They have neither the time nor the money—especially the time—to do anything remotely resembling a thorough search of the market to see which authors they might like more than any other. They can’t even do that in one corner of the market, such as science fiction and fantasy, much less the market as a whole.

So, with the exception of a few adventurous types, most readers stick with a small number of authors whom they’ve come to know that they generally like. They venture afield only rarely, for the good and simple reason that people are generally reluctant to spend money—and time, perhaps, even more so—on what amounts to a pig in a poke. Unless they have some reason to think they might enjoy an unfamiliar author, they will simply ignore them. For years, and years, and years.

I always urge every author who tries to argue with me on the significance of so-called “electronic piracy” to do a little experiment. Go to your nearest big bookstore and plant yourself somewhere that gives you a good view of the shelves where your book or books are located. Then, simply count the number of browsers in the course of an hour or two who don’t even glance at one of your titles. Forget taking it off the shelves, looking at the back cover, etc. etc, and then putting it back. I’m talking about the potential customers who ignore you completely.

Try it sometime. What you’ll discover is that for every potential customer who takes even a couple of seconds to consider your title, dozens will pass your books by without so much as a glance.

That’s the opacity of the book market at work. The real problem faced by authors isn’t theft, it’s invisibility. For the overwhelming majority of their potential customers, they simply don’t exist.

This is even true, by the way, for the best-selling authors, although not to the same degree. Just about every literate person today has heardof J.K. Rowling or Stephen King or Tom Clancy or Nora Roberts or John Grisham. But what percentage of their potential customers have never actually read them?

The answer is 90% and up, for even the best-selling authors. For one reason or another, even though potential readers have heard of the author—in many cases, in fact, because of what they’ve heard of that author—most of them simply don’t consider buying their titles. And, in many cases, based on information which is completely inaccurate.

To go back to my experiment, what you will discover is that every author loses more potential sales in one day due to the opacity of the market than they’d lose from “electronic piracy” in the course of an entire year. That being so, it’s simply common sense to look for any methods that improve your visibility in the market—and steer clear of any that make the opacity of the market even worse.

Like DRM.

I’ll explore this further in my next essay, where I’ll go into considerable detail showing how fair use has always been the author’s best friend, when it comes to promoting themselves and their works. And I will demonstrate that:

1) There is nothing that is “new” or “unparalleled” about the so-called danger of “electronic piracy.”

2) From the standpoint of the narrow economic self-interest of an author (or publisher), a generous and expansive attitude toward fair use is every bit as beneficial as it is to society as a whole.

3) Any author or publisher who supports DRM is, even in the narrowest terms of their own selfish interests…

Logically challenged. Most polite term I can use.

In the meantime, contemplate “invisibility” for the next two months. Try my little experiment—and then go online and spend the same hour or so trying to find pirated copies of your work.

And then, do some simple arithmetic, comparing your losses in one column to those in the other and extrapolating the result across a period of months and years. If you’re still deeply fretful about “online piracy” at the end, I can only hope you never get caught in a burning building—since you’ll obviously spend your time worrying about whether you’re wearing the right color socks to be seen in public rather than getting out of the fire.

 

 

Salvos Against Big Brother:

Spillage: or, The Way Fair Use Works in Favor of Authors and Publishers

 

 

In my last essay, I said I would continue to explore the way in which fair use benefits authors and publishers. In fact, I went so far as to say that “fair use has always been the author’s best friend” and I made the following two claims:

 

1) There is nothing that is “new” or “unparalleled” about the so-called danger of “electronic piracy.”

2) From the standpoint of the narrow economic self-interest of an author (or publisher), a generous and expansive attitude toward fair use is every bit as beneficial as it is to society as a whole.

 

Before I start in on the first of those two claims, I need to preface my remarks by discussing a phenomenon I call “spillage.” So far as I know—mind you, I won’t swear to it—I’m the first person to use that term in the way I use it, but I’m hardly the discoverer of the phenomenon. It’s been well known for centuries, not only by economic theorists but even more so by competent salesmen.

(If you’re wondering why I invented my own term instead of taking the time to do the research to find out which term is actually used by most economists, the answer is three-fold. First, I’m lazy. Second, inventing stuff is what authors do in the first place. Thirdly and finally, the reason we get away with it is that we generally invent stuff that’s way catchier and more interesting than academics do. So there.)

Car salesmen, for instance, are past masters at the art of spillage. Any car salesman knows perfectly good and well that he or she will not sell a car—doesn’t have a cold chance in hell—unless they can talk the prospective customer into taking a test drive. If you don’t believe me, review in your mind your experiences when it comes to buying a new car. Everything that salesman said to you was calculated, one way or another, to get you behind the wheel of the car in question and drive it around for a few blocks.

Why? Because that’s how cars get sold. True, occasionally, a customer will walk into a dealership knowing exactly what they want. That happens… maybe 1% of the time, at a guess. 5%, tops. In such a case, the only real issues involved are choosing a paint color and dickering over the terms. The customer doesn’t need—doesn’t want, in fact—a test drive, because it would just be a waste of everyone’s time. They know they want that specific year and model of that specific automobile.

In other words, on the rare occasions when that does happen, it only happens because the car-buyer is already very familiar with the car in question.

But the vast majority of car sales don’t happen until and unless the prospective customer takes a test drive. Every car salesmen in the world, being a breed of people who (judging from the evidence so far) are ten times smarter than most authors and almost all publishers—not to mention the morons who run the music recording industry—know that perfectly well.

Now, let’s ask ourselves another question. Of the prospective customers who do take a test drive, what percentage actually wind up buying the car?

I don’t know the answer to that question. I don’t think anyone does, in the scientific sense of basing their knowledge on a series of controlled studies. But all you have to do is talk to a few experienced car salesmen to get a reasonably accurate approximate answer.

It’s a relatively small percentage. Not tiny, no, but way short of a majority. At a guess, not more than 20%. I come up with that figure simply based on my own experience as a car buyer. I’m quite sure that, over the years, I’ve test-driven at least five cars for every one that I’ve bought—and that’s simply if we restrict “test drive” to the formal process of taking a test drive in a dealer’s car.

In reality, I’ve test-driven at least fifty cars for every one that I’ve bought. Every time I’ve rented a car from a car rental agency, I’m “test driving” a car—because, far more often than not, the model they give me is one that I’ve never driven before.

In fact, very recently in the course of a business trip, I would up renting a model I’d never driven before that I discovered I positively detested—despite being a well-known and supposedly “top line” model. I’m not going to name the vehicle in question, partly following my grandmother’s precept that if can’t find something good to say just keep your mouth shut—admittedly, a precept I’ve probably honored in the breach way more often than the observance—but mostly because it’s simply irrelevant. The reason I hated the car had nothing to do with the “big issues” of its handling, performance, mechanical reality, etc., etc. I hated the car because it was uncomfortable. Don’t ask me why, because I couldn’t tell you. All I know is that no matter how I tried to adjust the seat, that damn car simply didn’t fit my body properly. Every time I drove it, my back started aching within half an hour.

There is no way in hell I will ever buy that car—because of that “test drive.” Just as, a few years ago, it was the very pleasant experience of driving a different model that I rented that eventually led me to buying a new car of the same model. (Different year, but it was the same make and model.)

Every time I’ve borrowed a friend or relative’s car, I am in effect “test driving” it. The reason I bought the first car I ever bought in my life—a used 1955 Ford that I still remember very fondly—was because a friend of mine had the same car and I liked it when I drove it.

Car salesmen know that. They know that you have to be willing to let your customers enjoy a certain amount of “fair use” if you want to have any chance of selling them a car. Even though, from their standpoint, that “fair use” costs them a little. Not much, to be sure. Still, there’s a certain amount of wear and tear put on a vehicle every time it’s take off a car dealer’s lot, even if it’s only the requirement to keep it washed—not to mention that the dealer pays for the gasoline, not the customer.

That’s what I call “spillage.” It’s a simple, basic concept whenever you deal with selling anything. The best way to put it is this:

For every sale you make, how many “freebies” did you have to pass out in order to make the sale?

Obviously, the nature of the “freebie” will vary widely, from one product to another. Car dealers will cheerfully allow a prospective customer to test drive a car—but they certainly don’t hand out entire automobiles for free. The product is far too expensive for that form of spillage. On the other hand, many food companies and almost all wineries will pass out free samples of their product. Taken one at a time, the samples simply aren’t that expensive.

But regardless of the specific manner in which it’s done, most businesses dealing with retail customers—and a fair number of businesses selling to other businesses—engage in “spillage” as a matter of course.

So does the publishing industry, and it’s been doing it for centuries. I think the reason so many publishers and authors are so much more dim-witted on this subject than car salesmen is because the specific form that spillage takes in the publishing industry—leave it to intellectuals to make things excessively complicated—got all tangled up in fancy and often legalistic doctrines.

So, we call it “copyright protection” and contrast it with “fair use”—even though, from a cold-blooded business sales standpoint, “fair use” is the main way that copyright protection means anything in money terms to begin with.

I will make a flat statement. At least 90% of all book sales, outside of the narrow market in course-required textbooks, begin with fair use. Without fair use—expansive and sweeping fair use—those books would not be sold in the first place.

The reasons are similar to the reasons that’s true for car sales, but not identical. In the case of the automobile market, the big obstacle is simply price. Even the cheapest car costs a big chunk of a person’s annual income, and so no one is likely to buy a car without giving it a test drive just to make sure that, if nothing else, they like the costly damn thing.

Price isn’t particularly a problem with books—or music, or movies—except for the very poorest people in an advanced industrial society. A hardcover edition of a book, or a CD, or a DVD, will all cost about the same—somewhere between $5 and $30, depending on where you buy it, whether you buy it new or used, whether you buy it off the shelf or as part of a special sale, and so on and so forth. To put it another way, it’s cheaper than the cost of a meal at a good restaurant for two people. In fact, if you shop frugally by selecting previewed DVDs or used CDs or books, especially during a special sale, it can cost no more than a meal for two people at a fast food outlet.

Financially speaking, no great obstacle.

Instead, the obstacle is the opacity of the entertainment market. That’s even true of movies, by the way, although certainly not to the extreme degree that it is for the book and music market. Of course, since a movie is so much more expensive to produce than a book or a music CD, there are far fewer of them produced in any given period of time. But there are still more movies produced than anyone except a complete couch potato with a fat wallet could possibly watch. The prospective customer still has to make a choice between far too many selections, and without knowing very much about most of them.

With books, the situation is several orders of magnitude worse. And that’s the reason that prospective customers generally stick to the very small number of authors whom they know they’ll like—or, at least, have a good chance of liking.

And how do they know that? Nine times out of ten, because of fair use. One way or another, in the course of their lives, they ran across Author Joe or Jane through exercising fair use. They first ran across that author through a library, through a copy lent by a friend or relative, through a used bookstore—or, most common of all, by the word of mouth generated by other people’s exercise of fair use.

Fair use is, by a country mile, the most important way that the opacity of the book market gets penetrated, at least to a degree—and it costs authors and publishers absolutely nothing. Any publishing house, much less any individual author, who tried to substitute for the promotion they get through fair use would go bankrupt within a month. Period.

What’s amazing are the number of authors and publishers who don’t understand that—who even view fair use as costing them money.

Yes, it’s amazing, but it’s true. I’ve heard authors complain bitterly that used book sales hurt their income, because they get no royalties from such sales. I’ve heard authors complain just as bitterly that public libraries do the same. In fact, in one particularly grotesque display of cretinism not too long ago, Patricia Schroeder, the presidentof the Association of American Publishers, launched a general attack on public libraries for being a source of “electronic piracy” because they were too permissive toward their patrons’ use of electronic texts.

Perhaps the single most outlandish instance of this sort of authorial imbecility I ever observed personally came a few years ago at a book-signing during a science fiction convention. I wound up sitting next to a midlist writer at the signing. I felt a little sorry for her because I had a fairly constant line of fans asking for my autograph, and in the first half hour no one at all came up to her. Sympathetic, too—because it hadn’t been that long since I could well remember myself the near-complete obscurity I had as a new writer.

Finally, though, someone came up to her with a big smile and laid one of her titles down for an autograph. At which point, after giving the book a short scrutiny, the author lost her temper. “This is a remaindered copy! I didn’t get any royalties from this sale. No, I will not sign the book.”

A prime candidate for the Darwin Award, if I ever saw one. Of the few fans she had, she just lost one—not to mention that the ten or so people standing in line for my autograph heard her outburst also. I didn’t ask, but I’m pretty damn sure each and every one of them made a private mental note to avoid that author in the future.

For those of you not familiar with the term, a “remaindered copy” is a copy of a book that a bookstore decides to sell at an extreme discount. Depending on the specific language of an author’s contract, they may theoretically be entitled to a very small royalty on such sales—but, in the real world, authors assume that any copy of their books sold on the remaindered table is the equivalent of a used copy and they won’t see any money from the sale.

Someone asked me once how I felt whenever I saw a copy of one of my books on the remaindered table. (Almost all big bookstores have them, usually right in the front of the store.)

My answer was twofold. First, I very rarely saw any such copies in the first place. Which is not good news. Why? Because—you can test this proposition yourself, the next time you go into a bookstore, by looking at the remaindered table—it’s usually only the bestselling authors who get remaindered in the first place. Only once in a while does a title by Joe Neverheardofhim get remaindered—for the good and simple reason that the bookstore never buys more than one or two copies of his titles, so there simply isn’t a big stack to be remaindered.

Hopefully, at this point, it will dawn on you that the situation with remaindered books—and used books, and library copies, and free copies borrowed from a friend or relative—is exactly the same with so-called “electronic piracy.” In a nutshell, the more popular an author is, the more likely it is they will:

 

a) Get “pirated;”

b) Get remaindered;

c) Get their titles into libraries;

d) Get their titles in used book stores;

e) Get their titles in new book stores;

e) Sell copies of their books all over the place

f) Make a good living.

 

Duh. This is not rocket science. For Pete’s sake, why is it that something any supposedly lowbrow car salesman can understand perfectly well is beyond the grasp of authors, editors and publishers, almost all of whom have college degrees and many of them advanced degrees? You can’t sell books unless you’re willing to let the public have a lot of free or cheap copies. Any more than a car dealership can sell cars without letting their potential customers have test drives at the dealership’s expense.

C-a-n-n-o-t. The market is simply far too opaque to expect many people to buy a book “the way they should.”

Here, apparently, is what a book buyer is supposed to do. They’re supposed to walk into a bookstore, browse the shelves, and buy a book based solely on what they can glean from looking at the book’s covers and maybe flipping through the pages.

Of course, that does happen. I’ve bought books that way. So have you. But what percentage of the books you buy, do get bought that way? Figure it out for yourself, since it won’t take long. Jot down a list of all the books you’ve bought over any given period of time—by “bought,” I mean the “right” way; i.e., a new copy that the author got direct royalties from—and then figure out how many you came to buy simply because you spotted the title in a bookstore while browsing. And didn’t know anything about that author or book before you did so.

The answer will vary, from one person to the next. But it will never be higher than 25%, tops, and for most people it will be 10% or lower. The fact is that the overwhelming majority of new book purchases happen as a result, directly or indirectly, of fair use.

To go back to the question someone posed to me, the second part of my answer was this:

What I like to see are copies of my books available all over the place in editions that bring me no direct income—whether that’s in a library, a used bookstore, a remaindered table, or simply being passed from one person to another. Because I know that that “spillage” is simply the necessary lubricant for this very opaque market that my livelihood depends upon. It’s that spillage—that penumbra of free or cheap copies, if you will—that makes everything else possible in the first place.

What I don’t want to see are those books piling up, because they aren’t moving. (Or the library equivalent, which is not being checked out.)

Here’s the irony of it all. Those authors who fret because their titles are available in used bookstores or libraries should actually be worrying about something else.

Which is this. The real kiss of death for authors:

Used bookstores won’t buy your books, because they know they won’t sell.

Libraries won’t order your books, because they know the library’s patrons won’t check them out.

New bookstores won’t bother to put your books on the remaindered table, because they know they’ll just gather dust. Might as well save some labor and have them pulped.

And what determines that? The author, that’s who. It’s the author’s job to write books that are good enough—at least, in the eyes of enough people—that no matter what form of sale or distribution any given copy of a given title winds up having, it will have enough turnover to keep making it attractive to the distributor.

Looked at from this angle, what DRM amounts to is a demand by authors and publishers that e-books should be sold in a brown paper wrapper. It’s, in essence, a demand that their livelihoods should be protected by making it as difficult as possible for a prospective customer to know ahead of time if they actually want to buy the book or not.

And if that sounds screwy to you, it is. It’s the exact opposite of what authors and publishers should be doing—at least, if they honestly think the book they’ve written or published is a pretty damn good one. Which, as a rule, they do. Whatever other faults my industry has, I can honestly say it is not generally guilty of producing products that it considers shoddy. (Of course, you may think this or that book is shoddy. But very rarely did the author think so, when he or she wrote it.)

That being true, why insist on the brown paper wrapper? It’s silly. It’s just plain silly. I want as many people as possible to be familiar with my work—for the simple reason that I’m confident that enough of them will like it to provide me, directly or indirectly, with an income.

Not all, certainly. No book ever written in the history of the world, including the Bible, has pleased all of its readers. But so what? When it comes down to it, I’d far ratherthat people who don’t like my writing know that without having to spend money to find out. The main the reason I make all my titles available for free online after a certain period of time, of course, is in the hope—well, the knowledge, actually; to hell with false modesty—that a good percentage of the people who read those free copies will wind up buying either that title or something else of mine. But part of the reason is also because I want people who won’t enjoy my work to be able to find out at no cost.

Why? Because I’m not a dummy. What a lot of writers forget is that word-of-mouth works both ways. It’s not always positive, you know. Somebody who strongly dislikes a book is quite likely to pass that opinion on to his or her friends and relatives.

To some degree, that’s bound to happen no matter what. One of the things any successful commercial writer quickly learns is that you need to develop a thick skin. It is guaranteed that somebody out there is going to detest your work—and they’ll say so publicly.

But a smart writer will understand that it’s easy to remove most of the sting from the problem, if you support expansive fair use. It’s one thing for someone to read a book of yours and decide they don’t like it. It’s a different kettle of fish if they also decide they were ripped off for $25 to find out. In the first instance, they’ll most likely just shrug their shoulders. In the second, they’re likely to retaliate by making damn good and sure that everybody they know understands that Author Joe is a bum.

In fact, I’ve had it happen where someone who didn’t like a book of mine still recommended it to someone else. Because, first, they understood that not everyone has the same taste, and their friend might like it. And, secondly, because the book is available for free online. So, not only were they able to discover they didn’t like my book at no monetary expense, but they could also point out to their friend that they can find out whether they do like it, at no cost.

Over the years, by promoting fair use of my work instead of opposing it, I’ve wound up striking what amounts to an informal deal with my readers. My “fan base,” if you will, understanding that the term is a very fluid one and very fuzzy at the edges. What I mean by that is that not all of my books sell in the same range, or even close. That’s true of most authors.

My most popular title, 1632, has sold over one hundred thousand copies by now—“proper sales,” I mean, that paid me royalties. At a rough estimate, that means that somewhere in the range of a quarter of million to three quarters of a million people have read that book, since there are always far more people who read a book without paying for it than who do. My least popular titles sell about fifteen to twenty thousand copies, hardcover and paperback editions combined.

It’s a big fan base, in short. Not anywhere remotely close to the size of someone like Stephen King’s fan base, of course, but big enough to enable me to work as a full-time writer.

By now, the more enthusiastic of those fans—many of them, at least—have come to know how they can obtain a copy of one of my works. My publishers and I make them available in a very wide range in terms of cost. To put it another way, we’ve got lots of spillage.

If you really want a new title of mine as fast as you can get your hands on it—if it’s published by Baen Books, which most of them are—you can either buy an electronic Advanced Reader Copy for $15 or buy the month’s package in which the book appears through Webscriptions for the same price.

If you don’t like electronic editions, wait a few months and you can buy the hardcover edition as soon as it comes out, for somewhere around $25.

If your budget is limited or you’re just naturally a tightwad—excuse me, frugal—you can wait a little longer until the same hardcover edition appears in your local library. And you can make sure it does by pestering your librarian to order it. (Please do, in fact.)

If you prefer to own your own copy, but don’t want to pay hardcover prices, you can wait another year to a year and a half. The paperback reissue will come out then, for $7.99—or you might run across a used hardcover copy for roughly the same price.

If you want to wait until you can get a copy for free, just wait a few more months and I’ll put up a free electronic edition online.

Somewhere in that range, any customer can find a place—and there’s no hard feelings on anyone’s part. Not mine, not my publishers’—and not theirs.

And, guess what?

I very rarely get “pirated.” It does happen, from time to time, but as a problem in my life it ranks a long ways below kids occasionally scrawling graffiti on the side of my garage, or littering my lawn on their way to and from the high school two blocks away.

Why would anyone steal from me? Leaving aside the fact that it’s a fair amount of work for no big gain, there’s the still more important factor of what’s called “goodwill” on a business balance sheet. The truth is, the big majority of human beings are reasonably honest. Not perfect, no—but they’re very far removed from the horde of slavering thieves that the music recording and motion picture industries insist is the true nature of the American public. (Which I personally think is a classic case of what psychologists call “projection,” but never mind.)

Most people who read are naturally predisposed to approve of authors, for Pete’s sake. They know perfectly well that authors need to make a living, just like anyone else. They are not pre-disposed to steal from an author—unless that author (or his publisher) treats them like crooks. It’s only at that point that an author’s customers will get their dander up, and start thinking that copyright infringement is what the bum deserves anyway.

I don’t treats my readers as if they were crooks. To the contrary, I assume that they’re honest people and make every effort I can to make my work available in a wide range of convenient formats that anyone can afford, at whatever price they can afford.

I’d do that anyway, simply because I detest the opposite course of action. As I once put it, none too politely, to a literary agent (not mine) whom I heard complaining about the fact that blind people were legally entitled to get copies of books without paying royalties, the day I can’t make a living as a writer without stepping on blind people is the day I go back to being an honest machinist. Screw it. Unless you’re a saint, there’s no way to get through a lifetime without being a jackass from time to time. But that’s still no excuse for working at it.

But even in the most cold-blooded terms of my own monetary self-interest, it pays off. Sure, I lose some sales here and there along the way—but I make up for it not only through the promotional value but through the still simpler factor of building up goodwill among that portion of the reading public that’s heard of me.

How is this complicated? Which word in the phrase “treat people like crooks and they will surely do their best to prove you right” does anyone have trouble with?

As always, when it comes to the general issue of copyright, this was all explained perfectly well over a century and a half ago by Macaulay. I’ll quote this passage again:

 

I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

 

Treat people like crooks, and they will act like crooks. Treat them with respect, and make every reasonable effort to satisfy your customers’ desires, and they will respond the same way. It’s that simple.

****

Of course, it never is—simply because people can and will scare themselves to death by coming up with endless scenarios that project the wisdom above becoming obsolete.

So, in my next essays, I will deal with the two most common—and rational, let me say—objections to my approach to the problem.

The first is this:

What might work for one author, won’t work if all of them do it. To put it another way, it may be true that if a few authors use free or cheap distribution online of their work it rebounds to their advantage, because it helps them penetrate the opacity of the book market. But if all authors did it, that same opacity would close down again—except that the level of income of all authors would have been lowered in the process.

This is by no means a silly argument. In fact, on the surface, it looks very close to the standard argument advanced by trade unions explaining the need for collective bargaining. If you allow any individual employee “liberty of contract” to negotiate whatever terms they can get from an employer, it will inevitably be those people in the weakest position whom the employer will use to set the level for wages and benefits.

That is absolutely true, and as a lifelong supporter (and former activist) in the trade union movement, I support collective bargaining.

Similarly, so the argument goes, if a few authors start handing out their work for free, because they get an immediate promotional benefit from doing do, sooner or later all authors will be forced to do it simply in order to compete—and all authors will see an overall decline in their income. Including the scab idiot who started the ball rolling, because he was too short-sighted to see the inevitable end result.

The problem is that it’s a completely inappropriate analogy. Writers are not in the same position as factory workers, for the very same reasons that produce the opacity of the book market in the first place—as I’ll explain in the next essay.

The second objection is this:

An anti-DRM approach to electronic publishing may work very well, so long as the principal book market remains a paper market. Under those conditions, whatever sales you lose in the electronic market are more than made up for by the gains you make in the paper market, which is vastly bigger. But, sooner or later, electronic publishing will become the dominant format for publishers—at which point the same stupid author who thought it was a bright idea to promote his works online will discover that he just cut his own throat.

You will immediately see how closely connected the two arguments are to each other. In essence, with regard to both issues, the argument is that while DRM may be penny-foolish, it is pound-wise. It may hurt you in the short run, but in the long run it’s simply a necessity for the future.

Well, it isn’t, as I’ll spend quite a bit of time demonstrating.

 

 

 

 

 

Salvos Against Big Brother:

NOTE: need sub-title

 

 

I ended my last essay by posing the two major objections to the policy of using free or cheap online distribution of an author’s works as a promotional method, which I both advocate and practice personally.

 

So, in my next essays, I will deal with the two most important—and rational, let me say—objections to my approach to the problem.

The first is this:

What might work for one author, won’t work if all of them do it. To put it another way, it may be true that if a few authors use free or cheap distribution online of their work it rebounds to their advantage, because it helps them penetrate the opacity of the book market. But if all authors did it, that same opacity would close down again—except that the level of income of all authors would have been lowered in the process…

Similarly, so the argument goes, if a few authors start handing out their work for free, because they get an immediate promotional benefit from doing do, sooner or later all authors will be forced to do it simply in order to compete—and all authors will see an overall decline in their income. Including the scab idiot who started the ball rolling, because he was too short-sighted to see the inevitable end result.

 

Both argument are closely related, and both of them—even if the proponents don’t realize it—are based on making an analogy between an author’s labor and the kind of wage labor which can be and often is organized by trade unions. The arguments amount to saying that an author who hands out his or her work online for free is the equivalent of a scab, a strike-breaker.

Let me begin by disposing of the obvious rejoinder to these arguments, which is that authors are not on strike to begin with, so how can an author be breaking a non-existent strike? That’s true, of course, but it’s also begging the question a little. The underlying argument, whether there’s a strike going on or not, is that a worker who agrees to work for less than the prevailing wage in a given industry is in effect lowering the wages for every worker in that industry.

This is true enough, and it’s the reason some trade unionists will routinely refer to anybody who works in a non-union job in a given industry as “scab labor.” I disagree with that usage of the term myself, and did so during the quarter of a century I spent as a trade union activist. Quite strongly, in fact. But my disagreement doesn’t stem from a different assessment of the net effect of non-union labor. The ridiculous and none-too-hard-to-figure-out-who’s-paying-for-it claims of “right to work” advocates notwithstanding, it’s a simple fact—which anyone can check for themselves quite easily—that states with “right to work” laws typically have lower wages and benefits for labor in any given industry than states without such anti-labor laws. Often, much lower wages and benefits.

The reason I disagreed with the usage was because I felt and still do that the underlying problem was and is the continuing default of the labor movement, whose overly paid and usually bureaucratic leadership is generally sluggish and inept at the task of organizing trade unions in non-unions shops. So, the charge that non-union labor, as such, is “scab labor” is simply a dishonest way of covering up their own failings. It’s a variant of the old sour grapes defense mocked by Aesop in one of his fables: “Ah, that labor is scab labor anyway.”

Still, coming back from the digression, we’re left with the underlying issue. Whether or not non-union workers who agree to work for lower wages than union workers deserve the pejorative term “scab”—which they don’t, if there’s no actual strike-breaking taking place—it’s still a fact that non-union labor generally lowers the wages and benefits in any given industry.

(Yes, yes, yes, there are some exceptions—but, on closer look, even those exceptions typically disappear. The most common reason, by far, that some non-union companies pay wages and benefits that are equal to or even better than union shops, is simply to keep the union out. The owners or management are willing to pay what amounts to a premium so they don’t have to deal with trade unions in their ongoing operations. Fine and dandy. But if the trade unions were to suddenly disappear, those high wages and benefits would drop like a stone.)

That being the case, why wouldn’t the principle apply to what I’m proposing? In other words,. why wouldn’t a generalized policy of handing out many works for free online, applied by manyauthors, produce over time a decline in the overall compensation for writing fiction as a form of labor? It seems obvious, after all, that if customers know they can get fiction for free, they will be increasingly unwilling to pay for it; or, if they are, won’t be willing to pay as much as they did before.

Yes, the argument seems obvious—but it’s just as obviously wrong. In fact, it’s as full of holes as the proverbial Swiss cheese.

Let’s start with the most basic problem with the analogy between authors and wage laborers. It’s simple: With the exception of authors who work on a work-for-hire basis, authors are not wage laborers to begin with.

People often ask me what I like most about being able to make a living as a full-time writer, working entirely for royalties. (I.e., I do no writing on a work-for-hire basis.)

Most of the time, I think they expect me to respond along the lines of: “It’s nice doing creative work that I enjoy.” And, indeed, that’s my second reason for enjoying my occupation. But it’s not the first reason, not by a long shot. First, because it wouldn’t be true anyway. The notion that “non-creative” work is dull and tedious is often wrong on all three counts. True enough, some non-creative labor is genuinely dull and tedious. I can well remember working in an auto forge in Detroit running a trim press. My job, all day, consisted of punching out the auto parts made in the steam hammer whose crew I was part of. In the summer, in temperatures that often exceeded one hundred degrees Fahrenheit. Oh, joy. I also spent several years working in the meatpacking industry, usually at jobs that were every bit as dull and repetitious and sometimes just as hard.

But much “non-creative” labor is not only not dull and tedious, it’s very far from being “non-creative” in the first place. Nor do you have to ascend to the rarified heights of being a rocket scientist to discover that fact. To give a personal example again, I spent many years as a skilled machinist, usually operating a horizontal or vertical boring mill and often doing highly complex and challenging work. Anybody who thinks such labor is simply rote labor and doesn’t require a great deal of intelligence and, yes, creativity, is either a fool or a snob or both.

Granted, the work I do now is more interesting to me. But the main reason I love being a full-time writer is as crude and simple as it gets:

I don’t have a boss. I don’t have to punch a time clock. As long as I produce sufficient work of good enough quality for my customers at reasonably regular intervals—which is a given for almost anybody who works for a living—my time is my own and I answer to nobody.

Or, to put it as simply as possible, I am not a wage-laborer any more.

In narrowly economic terms, in fact, I am a small independent businessman. Granted, it’s a one-person business and I employ no laborers of my own. But that’s not particularly unique to writers. There are lots of one-person businesses in the world.

That being the case, it’s not only fallacious but even dishonest for writers to try to use an analogy between themselves and wage-laborers. The analogy washes over—tries to, rather—the essential and critical difference.

The reason wage-laborers generally need a trade union is because, as a rule, their labor is interchangeable. That’s true even in cases where the labor itself is very highly skilled or in short supply. Even the most skilled machinist—or airline pilot or air traffic controller, to use another example—can be replaced. Not easily, perhaps, but they can be in a pinch.

So, if you allow unregulated competition between workers, you will invariably see an overall decline in wages and benefits. And if anyone doesn’t believe me, I can only shrug my shoulders and recommend you study the history of economic relations over the last quarter of millennium, since the beginning of the industrial revolution. It’s blindingly obvious to anyone who doesn’t have an ax to grind.

My labor today, however, is not interchangeable. I don’t get paid by an employer in the first place. For a writer, a publisher is not a boss—even if he or she typically only publishes through one house. What the publisher houses actually are is a service that the author contracts with to produce and distribute their work. But an author’s income doesn’t come from the publisher. It comes from sales of the author’s work, the proceeds of which are divided between the author and a publishing house according to specific terms laid out in a contract for a specific book.

In short, my income derives from royalties, not wages. Those royalties, in turn, derive from sales of my books to my customers—or “fans,” as customers are normally referred to in the entertainment industries. The ultimate economic relationship is between me and my fans, and no one else. All the other parties involved in the process—publishers, distributors, retail outlets—are simply intermediaries.

An author’s fan base may be large or small. In my case, it’s large enough to enable me to make a full-time living from sales of my books. In the case of most authors, it’s not. In fact, it’s not even close. Most published authors derive only incidental income from their writing, and even most writers who get published regularly don’t make enough from sales of their work to be able to make a living as full-time writers.

It’s that fact, of course, that gives so many authors the illusion that they are comparable to wage-laborers. But they’re confusing a general relationship of economic power—“clout,” to use a slang term—with the specific relationship between wage-laborer and employer. Yes, it’s true that because most authors don’t sell very well, that publishing houses can often push them around or dispense with their services altogether. They don’t always behave that way, mind you. There are plenty of cases of publishing houses who actually go out of their way to keep an author in print even thought they don’t sell particularly well, at least for a while. But it’s certainly true, especially in the modern era where publishing is dominated by giant corporations instead of being—as it was in decades past—an industry dominated by independent houses, that it’s far more common for low-selling authors to be given short shrift by their publishers.

Being blunt, so what? The same is true in any entertainment industry. For every movie star who can pull in millions of dollars for making one film—who can, in fact, more or less make or break that film—there are thousands of part-time actors scrabbling at the edges. For every top athlete making millions of dollars a year, there are thousands scrabbling at the edges. For every top-selling popular singer or musician, the same is true.

We do not therefore conclude that the basic economic relationship in a given entertainment industry is determined by the bit players and the wannabes. It isn’t. Rather, and exactly the opposite from industries dominated by wage labor as the principal form of labor, the basic relationship is developed from the top down. It is, like it or not, the superstars and the most valuable players who primarily determine the level of compensation and the principles of that compensation.

Why? For the good and simple reason that, push comes to shove, they are the ones who draw the customers. Not their “bosses,” who aren’t bosses to begin with.

People came and paid for tickets to see Robert Jordan play basketball or Reggie Jackson or Nolan Ryan play baseball. They did not come to see the owners of those teams sitting in their sky boxes.

People pay for movie tickets or buy DVDs to see Will Smith or Tom Hanks or Meryl Streep or Julia Roberts perform. Some of them are also drawn by the name of the movie’s director. But I can assure you that the number of people sitting in a movie theater who know or care who the producers of that movie were can be counted on the fingers of one hand—and the number that comes up will usually be zero. The same is true, even more so, for people sitting at a musical performance.

The same is true, as a rule, for people buying a book. Almost every reader can tell you the name of the author of the book they’re reading. Not more than one in a hundred are likely to notice the name of the publishing house. There are some exceptions, of course, but not many. In science fiction, over the decades, one or another publishing house would develop such a distinctive identity that at least some readers were drawn by the identity of the house itself, and an even larger percentage recognized the identity. But, even there, the main reason for the distinctiveness was that a publishing house or magazine developed a very popular set of stable lead writers.

And that’s why it’s ridiculous to try to make an analogy between independent workers in an entertainment industry and wage laborers. The identity of any individual wage laborer vanishes in the process of the work. Indeed, as a rule, it has to vanish or the end product is deficient. When I worked as a machinist, for instance, any shaft I made on a lathe or housing I machined on a boring mill had to be indistinguishable from any other in that line. Why? Because what the customer was paying for was a product all of whose proportions fell within a very narrow range of tolerances. However creative may have been the work of figuring out how to make that product, the individual worker’s creativity became invisible in the product itself.

The opposite is true in entertainment. Much as they might like to—in some cases, fervently wish to—it’s just a cold fact of life that a movie producer can’t use actors interchangeably. He can’t produce a “Tom Hanks movie” without Tom Hanks. He can’t tell the real Tom Hanks that if he doesn’t agree to work for peanuts he’ll go out and hire another Tom Hanks.

Granted, a producer—or a publisher, or the owner of a sports team—can decide that he’ll make as much money if he contracts for the services of a different actor or writer or athlete. But then he still has to deal with that actor or writer or athlete, and he’ll still have to deal with them on whatever economic basis is determined by that individual’s performance in the market place.

So, over time, certain basic contractual terms become established for everybody—or most people, at least—in a specific entertainment industry. To use commercial fiction publishing as an example, the standard contract for any writer (except writers on a work-for-hire basis) is as follows, in terms of royalties paid:

For a hardcover title, the author will get either 10% or 12.5% or 15% of the cover price of the book for each and every copy sold. The difference is determined by the level of sales: an author gets 10% for the first 5000 copies sold, 12.5% for the next 5000, and 15% for any copies sold past ten thousand. For a mass market paperback, the percentages are 8% for all copies sold up to one hundred and fifty thousand, and 10% thereafter. For trade paperbacks, there’s a slightly wider fluctuation in terms—some houses pay the same rates as for hardcovers—but the general rule of thumb is that an author will get 7.5% of the cover price for every copy sold.

Those established percentages are not and were not set by little-published authors. They were established, over time, between publishing houses and their bestselling authors and the agents for those authors. And having been established, became generalized throughout the industry for all authors. (It’s true that new authors often have to sell a first book on a slightly sub-standard basis—for instance, 6% and 8% for paperback royalties instead of the standard 8% and 10%. But that’s a passing phase, one way or another. If they can’t sell any more books, it’s a moot point. And if they do, they’ll soon start getting the standard rates.)

Okay, so much for the basic economics involved. Now let’s go back and look at the question posed directly.

Given these specific economic relationships, what is the net effect on the income of authors as a whole if some of the authors start handing out some of their works for free in electronic format?

Well, the first and most obvious effect is that the authors who do so will become better known to the reading public at large. And, as a result of their greater visibility, will generally see an increase in their sales.

I need to stress that this is not guesswork on my part. It’s something that has been proven in practice over a period of years—by me, among other authors.

I can demonstrate this concretely, by using two of my novels as my examples.

The first book I put up for free online—in fact, it was the first volume in the Baen Free Library—was my first novel, Mother of Demons.

Mother of Demons was published in September of 1997, and it was only published in a mass market paperback edition, as was the standard practice at the time for first novels. (Most science fiction novels, actually.)

The initial sales were decent—good enough for the publisher to contract for more work from me—but hardly spectacular. Within two years, by which time the vast majority of books will have had most of their sales, the book had sold a little over ten thousand copies, with a 55% sell-through. (To remind you, “sell-through” refers to the percentage of books shipped which are actually sold.) That was slightly above average for a first novel in science fiction at the time, but only slightly.

At that point—partly because, being frank, I knew I had nothing much to lose—I put Mother of Demons up for free online in the Baen Free Library. Jim Baen and I, after discussing the matter, both thought it would be an interesting experiment. Jim was convinced that an author would lose nothing from doing so, and might very well gain as a result, and I was willing to be the guinea pig.

What happened next, over the many years that have followed, is both fascinating and instructive. Here are my royalty figures for Mother of Demons, for each successive royalty period. For those of you who don’t know, there are two royalty periods a year in publishing, at six month intervals. As a rule, though not always, the periods end on June 30 and December 31.

 

Royalty period: Total net sales Sell-through Period Sales

 

June 1999 9394 54 9394

Dec 1999 10550 55 1156

June 2000 11549 55 999

Dec 2000 12511 56 962

Jun 2001 13399 57 888

Dec 2001 15169 60 1770

Jun 2002 15887 60 718

Dec 2002 16696 61 809

Jun 2003 17639 62 943

Dec 2003 18428 63 789

June 2004 18982 63 554

Dec 2004 19876 64 894

June 2005 20413 65 537

Dec 2005 20883 65 470

June 2006 21407 65 524

Dec 2006 21934 66 527

 

You probably have to be an author to grasp immediately just how anomalous these results are. Here are the basic rules of thumb in commercial publishing when it comes to sales:

Rule Number One. 80% of all the sales of a title will happen in the first three months after it is published.

Rule Number Two. Thereafter, sales will decline steeply.

Rule Number Three. Within a few years—almost always less than five, and usually only two or three—sales are so low that it’s no longer worth it for a publisher to pay the warehousing costs to keep the title in print.

Rule Number Four. Sell-through rarely improves, and usually declines over time.

But with Mother of Demons, none of those rules applies.

As of the end of the last royalty period, almost nine years after the novel was first published, more than half of the sales came after the initial sales period. Almost 60%, in fact.

Although no other period, of course, came close to that first period in total sales, there was no noticeable decline thereafter until June 2005. For the first six years, though the end of 2004, the book sold an average of 873 copies each period. Then, even the clear drop that took place after six years simply seems to have set a new plateau for regular sales. In the two years that have elapsed since then, average sales dropped to 515 copies. But that “average” has seen hardly any fluctuation at all, and certainly no decline.

As of the day I’m writing this essay, August 29 of 2007, I am only three days away from the tenth anniversary of the publication of Mother of Demons. My first novel, mind you, and a novel which has been available for free in an electronic edition for the last seven years— and which has never gone out of print.

Do you have any idea how unusual it is for an author’s first novel to still be in print ten years after it came out? The exact percentages are unknown, but they are undoubtedly less than five percent, and probably less than one percent.

Before much longer—I figure, about a year from now—the existing print run for Mother of Demons will have been sold out. Normally, even for a novel with “long legs,” especially a paperback edition, that’s the point at which a publisher decides to let it go out of print. Even if sales are steady, they simply aren’t big enough to justify another print run, given the economics of mass market printing. It’s not worth doing a print run smaller than five thousand copies, and publishers prefer at least ten thousand. Even with the solid existing sales of Mother of Demons, it would take too many years to sell that many copies.

As it happens, however, Mother of Demons is not going out of print. Toni Weisskopf, who replaced Jim Baen as Baen Books’ publisher after Jim’s death last year, told me a couple of months ago that she was planning to do a limited hardcover edition of the novel. It’ll be a small print run, but that’s economically viable for a book which has small but solid sales.

So. Almost eight years ago, I put up my first novel for free online—as a result of which it got most of its sales since then, and is still selling well enough that even after the mass market edition finally runs out, the publisher is going to keep it in print in a hardcover edition.

Nobody knows exactly what percentage of first novels never go out of print for ten years and then get reissued in a hardcover edition. But the percentage is probably somewhere in the top one-tenth of one percent.

We’ll see the same pattern, in a moment, with another novel of mine. But, before I move on, let me just make a note. The next novel whose sales I’ll analyze, 1632, is the first novel in what has become a long-running and popular series, with (to date, as of this October) six novels and six anthologies in print. Some people who argue with me on this subject will claim that the ongoing sales of 1632 are due to that, not to the fact the book has been made available for free online for many years.

Baloney—and I know it’s baloney because Mothers of Demons is not part of any series. It’s a stand alone novel, which has no sequel that might keep stimulating its sales as the first book in a series.

Here are the comparable royalty figures for 1632, which was first published in February of 2000 in a hardcover edition. That edition was followed by a mass market paperback issue that came out exactly a year later, in February of 2001. I’ve forgotten the exact date that I put the novel up for free in the Baen Free Library, but it was sometime in that same year.

One note of explanation. I’m only using the paperback royalty figures because, for our purposes here, it’s the paperback figures that are critical. A book that comes out first in a hardcover edition, followed by a paperback reissue, sees an almost complete stop to hardcover sales once the paperback appears. So you can’t use hardcover royalty figures to gauge a book’s longevity.

 

Royalty period: Total net sales Sell-through Period Sales

 

Dec 2001 31237 85 31237

Jun 2002 31776 90 539

Dec 2002 41066 87 9290

Jun 2003 47535 87 6469

Dec 2003 54511 88 6976

June 2004 62306 89 7795

Dec 2004 67035 88 4729

June 2005 72071 88 5036

Dec 2005 77351 89 5280

June 2006 83437 89 6086

Dec 2006 94582 89 8145

 

Except for the first sales period, ending December 31 of 2001, allof these sales took place after I put the novel up for free online.

What we discover is exactly the same pattern. As before, no period enjoyed the same level of sales as the very first period. But that’s a given with almost any book, certainly a novel. (The rules for textbooks mandated by schools are different, of course. But very few novelists—and practically no living ones—have a phalanx of teachers and college professors to keep maintaining their sales by making their books assigned texts in classes that the students have to buy, whether they want to or not.)

But—this is completely out of whack with normal commercial publishing experience—most of the sales took place after that initial period. And the result is even more striking than it was with Mother of Demons. As of the last royalty period, 1632 has sold almost ninety-five thousand copies in paperback. Fully two-thirds of those sales happened after that first big sales period—and after the book was made available for free to the public in an electronic edition posted in a well-known and well-advertised web site.

There hasn’t been the same steady increase in sell-through that we saw with Mother of Demons . But that’s because 1632 started at 85% and soon reached 90%. If you ask any experienced publisher or publishing sales representative, they will tell you that a ninety percent sell-through rate is just about as high as any sell-through can ever get, in the real world. A “perfect” sell-through of one hundred percent is only theoretically possible—and it wouldn’t actually be “perfect” anyway. Truth be told, I’ve never been that happy that 1632 has maintained such a phenomenal sell-through for all these years.

Yeah, yeah, fine, it’s great for bragging rights. But the fact is that a sell-through that high is partly reflecting a bottleneck caused by the fact that the miserable misbegotten distributors—do the jerks pay any attention to their own figures?—aren’t ordering enough copies to begin with. I’d far rather see the sell-through drop to eighty or even seventy percent, it that reflecting greater shipping orders and therefore a better circulation of the book.

Still, that grumpiness aside, the fact that 1632 has maintained almost a ninety percent sell-through for many years, despite being available for free in an electronic edition, is actually enough in itself to make a mockery of the argument that putting up works for free hurts an author’s sales.

Notice, furthermore, that the sales have never dropped at all, once we get past that initial period. Since the period ending December of 2002—almost five years, now—1632 keeps selling, period after period, with no discernable decline in sales. There are fluctuations from one period to the next, naturally, but there is no overall decline at all. The average sales for any given six-month period during that five year stretch have been 6,645 copies—and the sales in the last period were higher than that average.

Part of the explanation, of course, is that 1632 is the first novel in a long series. One of the other rules of thumb in publishing is that the first novel in a series will always outsell all the other, later volumes—for the good and simple reason that readers who come into a series midway and enjoy whatever book they happened to stumble across, will typically start the series at the beginning by going out and finding the first book. To a lesser degree, the same phenomenon applies to all later books in the series.

So, if you step back and look at sales of a series over a long stretch of time, what you will almost always discover is that the sales fall on a sliding continuum, with the earlier books selling more copies than the later ones. Mind you, this is a relative relationship of sales, not an absolute limit. With a successful series, all of the books in it will show increasing sales. But the earlier volumes, especially the first one, will always sell more copies than later volumes.

Fine. But I think it’s patently absurd to claim that the fact the novel has been available for free in electronic format during that entire period has nothing to do with it—much less that it somehow hurt the sales of the book.

I will now make two very blunt statements:

One. It is preposterous—downright lunacy—to accuse me of being a “scab” and lowering the pay rates for all authors, when I make far more money than ninety-nine percent of them. For the past several years, my annual gross income as a writer has been around $150,000. In fact, it’s been slowly climbing. That certainly doesn’t put me in the league of really top-selling authors like John Grisham or Robert Jordan or Nora Roberts—much less J.K. Rowling—but it does put me in the top one percentile of all commercial fiction authors, including science fiction and fantasy authors.

To put it another way, you might just as well—and just as idiotically—accuse major league baseball players of lowering the pay scales for ball players in the minor leagues. Or accuse established character actors who get regular work in the movies of lowering the pay scales for bit part actors and extras. (That’s what an author like me is, by the way, if we use the movies as an economic analogy. I’m not one of the top stars, but I get lots and lots of work and make an income that’s at least twice the median income for Americans today.)

Two. It is just as preposterous—downright lunacy, again—to claim that my policy of putting up all of my works for free online after an initial period is hurting my income, and therefore the income of other authors. In fact, it does the opposite.

So much for the “scab” theory.

All right. This essay is already over five thousand words long, and so I’ll have to break until the next issue of the magazine coming out in December. I believe I’ve thoroughly demolished the “scab theory,” but that still leaves the fallback argument. Which amount this:

Okay, fine, jackass. So you’re not a “scab.” What you are instead is a predator, and to make things worse, a predator who is invading an ecology that’s not accustomed to your methods of predation. What’s happening here is that the good sales you’re bragging about come as a result of predating on the sales of other authors who don’t put up their work for free. And, eventually—like any voracious and out-of-control predator—you will wind up predating yourself out of existence. The day will come when the success of predators like you and other authors who do the same will drive out so many authors that the publishers will finally be able to force you to accept lower terms.

There are so many fallacies lurking under this notion that I’ll need a full essay to deal with them. But, as I break off, I will simply urge the readers of this column to spend the next couple of months—occasionally, occasionally—pondering two simple questions.

Where is it written, and in what holy text, that the pie for commercial fiction is fixed and only so large? And, therefore, that the success of one author must come at the expense of another?

The reality is quite the opposite, as I’ll show in my next column.

 

 

 

 

Salvos Against Big Brother:

The Pig-in-a-Poke Factor

 

 

In this essay, I want to take up the second of the arguments that is often advanced against the policy of taking a relaxed attitude toward fair use when it comes to online publishing. In my last essay, I believe I pretty much demolished the argument that the policy I follow (as do many other authors) leads to a direct decline in the income of authors. But that leaves the question of what might be the long-term impact of the policy.

In a nutshell, the argument usually advanced in opposition is that, while free distribution of a writer’s material online might very well produce an immediate benefit for that author, its long-term effect on all authors will be negative. Even, eventually, on the author who follows the policy.

The reasoning is simple. If it’s true—as I say that it is—that the worst obstacle faced by authors is obscurity, then it follows that any author who uses online free or cheap distribution of their work is indeed overcoming their obscurity, at least to a degree, and will improve their sales as a result. But it also follows that they can only do so by cannibalizing the sales of those authors who don’t make their work readily available on the internet. Their gain comes from the loss of others—and it should be obvious that, over time, this is a losing proposition. If we assume that eventually all authors are forced to follow suit, then we simply return to the same situation of mutual obscurity that the policy was supposed to overcome. All we’ve done is replace a market whose obscurity is caused by darkness with a market whose obscurity is caused by an excess of blaring advertisements.

This is not as silly an argument as it may seem, at first glance. For it is in fact true that too much visibility—if it becomes universal—can be every bit as blinding to potential customers as too little. Everyone has had the experience of being in a place which was overloaded with advertising. The typical effect upon most people is simply to make them learn to ignore it all.

So you gain nothing, in the long run—except that in the process you’ve lowered the price that authors can expect for their work.

Another way of putting this is that a policy which works fine if only a few authors follow it, will not work if they all start doing it.

There are three fallacies to this argument.

The first is that, underlying it, is the notion that the market for written text—fiction, at least—is pretty much fixed. That being the case, any expansion of sales enjoyed by one author due to his or her policy of using online promotion aggressively, will have to come at the expense of another author.

It’s enough to state this baldly, I think, to see how silly it is. In reality, the market for fiction is one of the most variable in existence. Not only that, it’s a shallow market to begin with, not one that has even begun to be saturated. Another study just appeared that lamented (again) that the average American adult reads only four books a year, and most of those were non-fiction. Assuming full hardcover prices of about $25 a book—and that’s certainly too high an estimate, because the majority of fiction purchases are of paperbacks—that means the average American adult is spending $100 or less on fiction annually.

Which, in turn, means that fiction buying is so small a part of the average American’s budget that it could easily be expanded tenfold before it started making much of dent in their income. It’s no higher than the spending of most households on movie tickets, which is in approximately the same range.

But averages like this don’t really mean that much, because in the real world most book buying is done by a relatively small percentage of the population. Estimates on this vary, but it’s never more than 20% of the adult population and usually closer to 15%. If you exclude those adults who don’t read any books at all, for instance, which is about 25% of the population, median book sales in the US as of the study (which was done by Associated Press-Ipsos) rise to seven books a year.

But even that’s not very meaningful, because while it may be true that three-fourths of the adult population buy all the books, the majority of those books were bought by a much smaller percentage. The livelihood of authors and publishers really depends on that (approximately) 15% of the adult population who are more-or-less constant readers. People who read at least one book a month, often one book a week, and some of whom read even more than that.

Before I go any further, I need to dispel one myth, so it doesn’t get in the way. That’s the widely spread and often-spouted myth that readership is declining in America because of the impact of modern electronic entertainment. To quote from the AO-Ipsos study, “Analysts attribute the listlessness to competition from the Internet and other media.”

Well, the analysts are wrong, and the reasons they’re wrong—as is so often true with social analyses of all kinds—is that they lack any historical perspective. The truth is that the American population has never —not once, not in three hundred years—been a population that, on average, reads very much. And when it does read, the preferred reading for most Americans has always been either religious texts—mostly the Bible—or self-help non-fiction literature.

That was true in 1900, long before the internet came along. It was true in 1800, before there any workable electricity. It was true in 1700, before anyone even knew what electricity was.

In short, it’s “caused” by the way American culture developed historically, that’s all. Different nations have different reading habits, shaped by their own history. Russians, for instance, have always read a lot more than Americans.

I won’t spend any more time on this, because it’s a digression from my central point here. Which is simply this:

One. There is obviously a tremendous expansion possible in the amount of book buying that Americans do. (And other nations, of course—but I’m focusing on Americans because they still provide the great majority of the readership for English-language genre fiction, including science fiction and fantasy.)

Two. Of all the many factors that determine how much any given American reads, the factor of “competition” between authors is so negligible that even to include it at all as a causative factor is silly.

Which leads me to my second point. The actual relationship between authors is not and never has been competitive in the first place. Or, to put it perhaps a bit more precisely, whatever competitive aspects do exist are simply dwarfed by the many ways in which the work of authors is complementary and mutual reinforcing.

The real effect upon other authors whenever one of them becomes extremely visible to the public and wildly popular is not and never has been to crush the rest. Rather, that author’s popularity tends to do the exact opposite. It creates what you might call a new sub-category of the fiction market—or, more often, popularizes one that already existed—and makes it far more popular. As a result of which, most authors who work in that same sub-category start seeing an increase in their sales.

We’ve had, very recently, as graphic a demonstration of this truth as you could ask for. What was the effect of J.K. Rowling’s phenomenally popular Harry Potter series on the sales of other writers who produced works of fantasy for a juvenile and young adult audience? Did she drive them under? Obliterate their careers like a one-woman Mongol horde?

What a laugh. In fact, the sales for many of those authors got a tremendous boost as a result of Rowling’s popularity.

Nor is this an isolated instance. To the contrary. It’s the common pattern, and has been throughout history. To give another example, the impact of Anne Rice’s very popular vampire novels was to turn writing about vampires into something of a not-so-small industry. To give yet another example, the popularity of Tom Clancy’s techno-thrillers almost (not quite) single-handedly created the entire techno-thriller sub-genre.

I could go on and on. J.R.R. Tolkien’s Lord of Rings transformed fantasy writing from a relatively small sub-genre of science fiction into a sub-genre of its own that today outsells science fiction by a large margin. The impact of that trilogy was further enhanced when the reissues of Robert E. Howard’s old Conan stories start coming out—but they only came out because Tolkien had demonstrated there was a huge market for fantasy.

Look anywhere you want, and you’ll see the same phenomenon at work. The pioneering mystery stories written by Edgar Allen Poe and Arthur Conan Doyle did not crush the mystery genre. They created it in the first place—and their work was rapidly expanded by such great mystery authors of the so-called “Golden Age of Mysteries” as G.K. Chesterton, Agatha Christie, Mary Roberts Rinehart, Patricia Wentworth, Georges Simenon, Dorothy Sayers, Rex Stout, Dashiell Hammett, Raymond Chandler and many authors.

Were these mystery authors competing with each other? No, they were complementing each other. Their combined visibility is what elevated the mystery genre to a major writing market in the first place.

The same phenomenon, in fact, is the basis of my own success as an author. As of now, I’ve written or co-authored something like twenty-five novels. (No, I don’t remember the exact number and I’m not going to take the time to figure it out. There are two benchmarks that tell you you’re a successful commercial author. The first is when you realize you can’t remember offhand exactly how many books you’ve published. The second is when you realize that at least half your income is coming from royalties instead of advances.)

I write in many sub-genres of science fiction and fantasy. But it’s the one-third of my books which are alternate history that generate most of my income. That’s primarily the 1632 series, but not exclusively.

The pre-eminent alternate history author today, as he has been for a decade and a half, is Harry Turtledove. He’s not the only one, of course. Other prominent alternate history authors include myself, Steve Stirling, and the collaborative team of Newt Gingrich and Bill Fortschen. Not to mention that Philip Roth, generally considered a literary author rather than a genre author, recently published an alternate history novel (The Plot Against America ) whose sales dwarfed those of any of the established authors in the sub-genre.

I do not now and have never considered Harry Turtledove—or Steve Stirling, or Gingrich and Forstchen, or for that matter Philip Roth—as my “competitor.” I’m not that blitheringly stupid. In the real world, it would be far more accurate to say that my own success is due to Harry Turtledove than that it has been in any way “thwarted” or “stifled” by him. It was Harry, more than anyone else, who both demonstrated to publishers that there was a sizeable market for alternate history—and, to a large degree, even created the market in the first place. I had the good fortune to come along at a point when alternate history was growing rapidly as a popular genre, and since my own expertise is in history I naturally leaned toward that kind of fiction anyway.

Having given that well-deserved tip of the hat to Harry, my horror of false modesty forces me to add that I have certainly not been parasitizing him. My own popularity as an alternate history author—along with that of Steve Stirling, Newt Gingrich and Bill Forstchen, and a number of others—has turned the sub-genre from the one-man show it almost was in the mid-90s to the very large and popular sub-genre it is today. One of the effects of that change has been to solidify Harry’s career, certainly not to undermine it.

Any author with half a brain knows this is true. So why do so many of them seem to lose their mind when this same, simple truth is applied to the internet and electronic publication? Why in the world would anyone think that the greater visibility enjoyed by authors who use online promotion aggressively would hurt any other author?

Visibility is visibility, regardless of how you achieve it. Whether it’s through very good sales of paper editions, extensive advertising, media hype—or aggressive use of free and cheap electronic distribution—the net effect will be the same. By drawing more readers to Author A, the sales of other authors whose work is similar will get promoted as well. Not as much, granted—but nothing prevents them from following the same policy.

The expression “a rising tide lifts all boats” has been much misused. In many areas of economic activity, it is not true at all. But it does happen to be true when it comes to publishing, at least entertainment publishing. (Different factors affect things like the sales of textbooks or religious works.)

Finally, there’s a third flaw in the argument. One of the characteristics of the commercial entertainment publishing industry, precisely because the market is so opaque to potential customers, is that there’s an enormous amount of waste. “Waste,” in the sense that a very high percentage of the time and money that readers devote to reading turns out to be wasted for them.

Why? Because they buy a book and then discover they don’t like it. In the case of non-fiction, which is often purchased for practical reasons, that can be compounded by discovering the book didn’t provide them with what they thought or hoped it would.

I am personally convinced that it is this aspect of book-buying—a phenomenon which is well-known to me and every other person in the history of the world who has ever bought more than a handful of books—that is the single biggest obstacle to book purchasing.

Call it the pig-in-a-poke factor.

The obstacle is certainly not price. The fact is that except for a very small number of high-priced books, which are usually either technical texts or limited-print-run collector’s editions, the cost of the average book—yes, even hardcovers—is a piddly expense for the average person who is well-educated enough to read regularly. Students are really the only big exception. In the nature of things, students are starving students, as they damn well should be.

(Hey, look, I was a starving student too, once upon a time. I can well remember a steady diet of the cheapest meat available, potatoes and cabbage, living in a rundown apartment and driving a jalopy. Did me a world of good. Yet… somehow I always scraped up the money for books.)

(Okay, and booze and cigarettes and other starving student items some of which will remain nameless. This is the age at which human beings first learn the great philosophical truth that—economists be damned; buncha gloomy types, natural born devotees of Schopenhauer and Cassandra—luxuries are more essential than necessities.)

Granted, if someone buys a lot of books, that can become a significant part of their budget. But each book, by itself, doesn’t amount to much.

An average hardcover volume these days costs about $25. That’s the approximate cost of going to the movies for two people, if you add in the popcorn and soda that most of them will buy. And for that same money, they get about two hours of entertainment sitting in a movie theater. Except for a small number of speed readers, an average novel will provide a lot more hours of entertainment than that.

A paperback costs eight dollars. That’s a meal for two—less, usually—at a fast food joint.

No, it’s not price. The real problem is that people have been burned way too many times from buying a book and then discovering it wasn’t what they wanted. Either because they discovered they didn’t like the author’s manner of story-telling or writer’s style, or because they discovered the subject matter was not what they really wanted.

The effect of the pig-in-a-poke factor is to reinforce—drastically, in fact—the natural conservatism of readers faced by a very opaque market. As a rule, most readers most of the time stick to the very small number of authors they are familiar with. (In the case of fiction. In the case of non-fiction, they will usually be more far-ranging in their buying simply because they have to be.)

And that’s the third area in which electronic publishing—more precisely, having an expansive attitude toward fair use when it comes to electronic publishing—can play a major role in easing the skepticism of an author’s potential audience.

I will use myself as an example. No potential reader of mine who has access to the internet needs to buy anything of mine on a wing and a prayer. It is easy and free of cost (money cost, if not time) to investigate my work before you plunk down one dollar for any of my books.

Here’s how you do it:

Go to www.baen.com .

Select “Free Library” from the menu at the top, on the left hand side.

Once you’re in the Baen Free Library, select “The Authors.” (Fourth item down, in the column on the left.)

Then select “Eric Flint”—or any one of the other authors who have works in the Library. There are over forty of them, and the number keeps growing.

My most popular work are the volumes in my 1632 series. If you’re not sure you’d find that series to your taste, it’s easy and free to find out. You will find the first two novels in the series in the Library—that’s 1632 and 1633 —along with two of the anthologies devoted to the series. ( Ring of Fire and Grantville Gazette, Volume 1 .)

Think you might like my alternate history series dealing with early 19th century America? You can find the first book in that series also in the Library. That’s 1812: The Rivers of War.

If you might find a series that combines alternate history with fantasy to your taste, you should take at look at the first book in the Heirs of Alexandra series that I’m writing with Mercedes Lackey and Dave Freer. That’s The Shadow of the Lion, which is also in the Library.

I could continue, but I think the point is made. While you’re at it, you can read—free of cost, and unencrypted—the first book or books in popular series by David Weber, David Drake, John Ringo, and several others.

In short, by using free distribution online of our work, many of us have essentially eliminated the pig-in-a-poke factor.

To go back to the question at hand, what would be the effect on book-buying if all authors started doing the same thing?

Well, obviously, one of the effects would be that every author would lose some sales. Not every reader who examines an author’s work for free is going to like it.

Fine. Those are not sales any intelligent author wants anyway. Word of mouth works both ways. I don’t want someone who dislikes my work to pay money for it. Whatever short-term gain I make is more than offset by the long-term damage of having negative word of mouth running loose out there. Which it will, don’t think it won’t— if the reader paid money for it. But what I’ve found is that readers who investigate my work for free and then discover they don’t like it, don’t have any hard feelings about the matter. In fact, I know of several instances where they recommended me to someone else, whom they thought might like my work even if they didn’t.

To repeat myself, this is not rocket science. It’s simply the authorial version of that common-sense business practice known as “goodwill”—which has been well understood by lowly shopkeepers and shoemakers if not oh-so-cerebral auteurs since the days of the Sumerians.

To conclude, the notion that if all authors followed my policy when it comes to an expansive attitude toward fair use—or a variant thereof, since there are many possible—the end result would be a decline in the income of authors as a class, is wrong.

And it’s wrong on all three counts.

First, the market for writers is not fixed. It’s a pie whose size is wildly variable.

Second, writers are not competitors anyway. The real impact of a popular author on the book market is to enhance the sales of other authors, not diminish them.

Third, by eliminating at least some of the opacity of the book market, expansive fair use diminishes the tremendous waste that takes place now—and thereby makes readers more willing to experiment with new authors.

****

To some extent, I’ve been beating a dead horse in these last two essays. Or, it might be better to say, viciously lashing a pitiful crippled beast who is not quite dead yet but is foundering fast.

The truth is that, at least within the world of science fiction and fantasy, this part of the argument has been mostly won by now. It took a few years, and it was primarily done not by argument but by the practical examples of authors like me and Baen Books as a publishing house. But by now, it’s pretty much a settled argument. There really aren’t too many authors or editors out there any longer who doubt that expansive fair use practices with regard to electronic publishing enhances the sales of paper editions.

(As opposed to the bean-counters who run most big corporate publishing houses, who still can’t see their nose in front of their face.)

But that’s now where the stumbling block has come to be. It’s slid back, so to speak, to a different level of opposition.

The argument that is now advanced can be summarized as follows:

Yes, it seems clear that distributing electronic books cheaply or even for free does enhance sales of the paper editions of those same books. And, since the book market today is still overwhelmingly a paper market, that works to the short-term advantage of authors and publishers.

But in the long run, it’s suicide. Sooner or later, electronic publishing is bound to become the dominant form of publishing. And at that point, these same expansive fair use practices will come back to haunt us. Since, obviously, it will undercut the electronic market which will someday become the main form of the market rather than the small niche it is now.

****

In my next essays, I will deal with this issue at considerable length and in considerable detail. What I will demonstrate is the following:

First, the likelihood that the market book is on the verge of extinction is very low.

Secondly, even if we presume a completely electronic market, expansive fair use will still continue to enhance sales, not diminish them.

Thirdly, and perhaps most importantly, publishing and writing as economic activities have always been subject to change in their specific methods of gaining an income. All that electronic publishing does is simply usher in yet another such change. And, as has been true with all such transformations in the past, the new methods create new sources of income, which at the very least offset whatever losses may be suffered.

 

 

 

 

 

Salvos Against Big Brother:

Paper books are not going to be joining the dodo any time soon. If ever.

 

 

Beginning with this essay, I’m going to devote several essays in this column to analyzing the impact on publishing as electronic reading continues to expand. So far, for the most part, I’ve concentrated on demonstrating the fallacy of the various arguments in favor of DRM that focus on the impact of electronic so-called piracy on the sales of paper books.

If we plant our feet on the real world, that was quite reasonable. Outside of some specialty areas like encyclopedia publishing, the overwhelming bulk of publishing—whether you measure that in terms of income generated, number of titles produced, or number of readers—has remained traditional paper publishing. Except for those specialty areas, electronic publishing is still a tiny sliver of the market.

But what if—or when—that changes? What if—or when—electronic publishing becomes the dominant form of publishing? Perhaps even the exclusive form of publishing?

It would seem self-evident, the argument goes, that at that point the problem of electronic piracy would become paramount. Whatever income the expanded sales of paper editions might get from free electronic copies would obviously no longer offset the losses. It would vanish altogether—or, at the very least, become picayune.

From that time on, so the argument goes, doom is upon us. The moment pirate editions of electronic books—and there are no other kind of books, any longer—start reaching the top of the list in search engines, authors will starve to death and publishers will go bankrupt.

Everything about this argument is wrong, from the letter A to the letter Z. And it’s wrong on all levels. It will take me several essays to dismantle the argument, because it’s based on a pile of errors, each of which lays the premise for the next.

I will take up the following issues:

 

1) Is it true, to begin with, that electronic publishing is on the verge—or even within a decade or two—of replacing paper publishing as the dominant form of publishing?

 

2) Will the relationship between traditional paper publishing and electronic publishing be one of replacement? Or will it, instead, be a supplemental one? And, within that range, what are the most likely outcomes? Should we use as a past historical model the relationship between:

a) typewriters and computers – complete substitution;

b) manual transmissions and automatic transmissions – a division of the market;

c) ground personal transport and air personal transport – supplemental, with both old and new technologies used by almost everyone;

d) kitchen knives and home food processors – the old technology remains dominant, with the new one purely supplemental and used by relatively few people.

 

3) Assuming the most likely variant—which is somewhere between “b” and “c,” to prefigure my analysis—how significant will be the impact of electronic copyright infringement? To put it another way, what policies would be best to follow concerning DRM and fair use?

 

4) Assuming the “worst” possible variant—the complete substitution of paper publishing by electronic publication, and the relegation of paper books to historical curiosities—would those policies need to be drastically changed or modified?

 

In this essay, I’m going to concentrate on the first issue: How close are we to seeing the advent of the “electronic age” in reading books? And how rapidly is the change going to take place?

I’ll start with the simple version of the answer. We are not even close to the point where, outside of some specialty areas, we will be seeing electronic publishing become the dominant form of publishing. In fact, in those areas of publishing which are and always have been the mainstay of book publishing—fiction of all sorts, and popular non-fiction titles—electronic publishing will remain a sideline for many years to come.

Why? For the good and simple reason that while electronic publishing presents some advantages for publishers and readers (and authors, for that matter), compared to traditional publishing, the advantages simply aren’t great enough for most people to offset either the disadvantages or the sheer cultural inertia of paper books. Analogies between electronic publishing and other technologies which have seen a rapid and explosive growth collapse at the very beginning—because the analogy itself is fallacious.

Whenever you see or hear someone arguing that electronic publishing is about to undergo an explosive development, I urge you to look closely at the structure of the argument. What you will discover—each and every time, with no exceptions—is that the argument is based purely on reasoning by analogy. It is never based on any facts deriving from the actual industry under question, which is the book publishing industry.

That’s because all the facts point in the opposite direction. The facts —which are now based on at least fifteen years of experience—indicate that electronic publishing and reading grow quite slowly, outside of some specialty areas.

Argument by analogy is always suspect. Pointing to the explosive growth of computers, or cell phones, or various forms of electronic copying devices for music and video (VHS, DvDs, etc) as if those phenomena provide any sort of predictive powers for the growth of electronic reading simply begs the question. So do learned arguments about so-called “S-curves” in the development and expansion of technological innovations.

The reason it begs the question is that the argument pre-supposes that simply because something is a technological innovation it is predestined to develop a large market.

But that’s silly. Technological innovations come in a vast range. Some are so much better that they rapidly and completely replace the pre-existing technology. To use my range of examples above, a computer word processing program is so superior to a typewriter for any purpose that within a very short time, typewriters became purely historical objects.

But, moving down my list, consider what happened with automatic transmissions. They were first introduced into the commercial market by Oldsmobile in 1940—over two-thirds of a century ago. But, on a global scale, they’ve only just begun to finally supplant manual transmissions as the predominant form of automobile transmissions, although they did so in North America several decades ago. Still, even in North America, about seventeen percent of all cars purchased use a manual transmission. And that doesn’t include the use of manual transmissions in commercial-size trucks.

Moving still further down my list, air personal transport—once widely predicted in science fiction to be on the verge of replacing ground personal transport—did indeed enjoy explosive growth since the first airplane specifically designed for passenger flight was introduced by Boeing in 1929. But the growth came entirely as a supplement to ground transport, not a substitute. In the United States, air travel has by now largely supplanted rail travel for the passenger market—but it hasn’t made a dent in automobile travel. And, in most of the world outside of the U.S., rail travel is continuing to do quite well.

Finally, there’s the home food processor. First introduced into the market in France in the late 60s, it spread to the United States in the early 70s. To put it another way, the new technology has had four decades to supplant kitchen knives. And…

Kitchen knives are doing just fine, thank you. Even those people—a small share of the potential market—who do buy home food processors, never get rid of their kitchen knives. Food processors have simply become a minor supplement to the traditional technology, and have not replaced that “obsolete” technology at all.

Why? Because while food processors have some advantages over kitchen knives for some purposes on some occasions, they simply don’t provide enough advantages—and have some drawbacks of their own—to replace kitchen knives. Even for people who buy and use home food processors, kitchen knives are still the “default tool” used for most purposes.

To be sarcastic about this, the next time someone lectures you on the S-curve and what it “inevitably” implies for electronic publishing, ask them what the S-curve was for the autogyro.

There’s an old maxim: If it ain’t broke, don’t fix it.

And the fact is, the traditional “obsolete and old-fashioned” paper book ain’t broke. Not for most readers, most of the time, for most purposes. And, whatever its limitations, it possesses some enormous advantages over electronic books.

To begin with, like kitchen knives, paper publishing is a technology that has been tested over centuries and has proven itself to be extremely durable and reliable. In contrast, NO software yet developed has demonstrated that it can even last a decade before it gets replaced by something else.

You can buy a paper book and know, for a certainty, that barring a flood or a fire or a bombing raid or an asteroid strike or real carelessness on your part, you will still be able to read the same book half a century from now. If it’s a hardcover, longer than that.

Can anyone say the same about any electronic reading device on the market today—or predicted to be on the market in the foreseeable future?

No. In fact, everyone has dark memories about “inevitable” technologies that bit them on the ass. Can we say… eight-track tapes… Betamax… software programs too numerous to count which became obsolete…

There are some absolutely enormous advantages to paper books. The biggest and simplest stem from the very simplicity of the technology.

Here’s what you need to obtain and use a paper book:

Literacy in one or another language. That is the only software required.

A relatively small amount of money. That is the only financial limitation—and you can get around that one easily, by borrowing a book or using a library.

If you can read and have some money, you can own and use a paper book. That book does not require you to agree to an end-user license. That book does not carry any risk of becoming obsolete so long as the paper, ink and binding holds up—and they’ll hold up for decades, even with a cheap paperback.

There is no restriction as to which publisher you buy from. You can buy from any of them—because they all use exactly the same software. The English language. (Or whichever other language you’re reading.) There are no security codes you need to obtain, learn, memorize. No username, no password.

And… once you buy that book, you OWN it. No ifs, ands or buts. You can do anything you want with it. Keep it, sell it, lend it to a friend, throw it at the neighbor’s yowling cat or use it for a doorstop. There is no chance at all that you will be subjected to a lawsuit because you violated this or that or the other provision of the Digital Millennium Copyright Act or fell foul of the RIIA.

One universal and standard software. One universal and standard purchasing mechanism. Complete and total ownership.

Those factors alone make the potential market for e-books extremely resistant. All the more so because the only major advantage of electronic text for most readers is simply storage. The one respect in which electronic books and e-book readers are clearly, unequivocally and absolutely superior to paper books is that they don’t take up much space. You can fit an entire bookshelf into one e-book reader. (At least, with certain models.)

The problem, however, is that the same clear advantage is also a major disadvantage. The fact is that the great majority of book purchases are done by a small minority of readers. That’s true in every literate country in the world, although the percentages vary from nation to nation. Russians, for instance, have a traditionally book-oriented culture whose adults read a lot of books, whereas Americans do not. Throughout American history—this is not a recent development “caused” by the digital era; it goes back at least three centuries—most adult Americans read few books, and when they do the books will usually be either religious in nature and/or be practical manuals or self-help books of one sort or another.

What that means is that publishers, author and editors have always relied on a relatively small percentage of the population for their income and livelihoods. In the United States, the figure is not more than fifteen percent of the adult population.

The reason this is possible, however, is because—as a rule; there are always exceptions—those people who do read books typically read a lot of them. Go into any household in the Unites States, and with a few exceptions you will always discover the same thing:

There are either no books visible, beyond perhaps the Bible and one or two self-help books (diet books; “How to Get Rich in Ten Easy Steps;” etc, etc) or there is at least one full bookcase.

Those people who assume that the storage advantage of e-books will be enough in itself to cause that technology to soon dominate the market, should really ponder the implications. Because the reality is that paper books are not and never have been simply a tool to read text. A paper book is a cultural artifact whose intellectual, emotional, social—even symbolic—important is deeply rooted in every literate culture in the world.

There’s a reason, y’know, it’s called the Holy Book.

Try to imagine a world whose regular readers will cheerfully give up bookcases full of books.

Go ahead. Try.

Not so easy, is it?

And for what? Ease of storage ?

Oh, what a laugh. I do not know one single person who reads regularly who has not, at least once in their lives, gone to well-nigh incredible lengths to figure out a wayto store their books. Be it ingenious locations for bookshelves, stashing them in the basement or attic or garage, whatever. With a few exceptions, it’s only with great reluctance that such people finally decide to give away or sell some of their books. (Except the ones they don’t like, of course. But not even the most rabid enthusiast for e-book readers thinks people will buy the gadgets to store books they don’t want to begin with.)

What other real advantages do e-books have over paper books?

For most people… none worth talking about.

I stress “for most people,” because there are obviously exceptions—and a fair number of them. The single most important group, for whom electronic reading is definitely superior to paper reading, are those people who suffer one or another physical handicap that makes reading paper books difficult. The most common example are people who are blind or have a severe visual impairment. For them, the advent of electronic reading has been a genuine blessing.

But—yes, I know this is cold-blooded—those people are and always have been a small share of the market.

Beyond that, there are some people for whom the various bells and whistles really matter. I know one regular reader who swears to me—and I believe him—that he actually prefers to read electronic text. But people like that are few and far between.

And that won’t change much, or quickly, because the advantages they point to are simply marginal for most readers.

I can easily bookmark a page electronically!

Uh, yeah… and I’ve been doing that with a bookmark or a pencil—or, usually, just a scrap of paper I find somewhere—for half a century. So have and do most people. It’s honestly not the labors of Hercules that’s being saved here. For this, I should spring the money to buy an e-book reader and put myself at the mercy of e-book manufacturers and software developers?

With a backlit screen, I can read in the dark!

Uh, yeah… and how many people, except kids staying up past their bedtime and surreptitiously reading under the blankets with a flashlight, really need that particular advantage? Mind you, I hold those youngsters in very high esteem—having been one myself, at times past—but the cold-blooded fact remains that they’re a tiny percentage of the market. The reason they have curfews to violate in the first place is because they are too young to have much in the way of a disposable income.

I can easily search for text!

This is true—and, as I will examine in a later essay, it’s the reason that many people (including me) like to also possess an electronically formatted version of a book. There are times when being able to search for text is indeed handy.

But being able to search for text is a fairly trivial advantage to e-books, all things considered, especially when you factor into the equation a basic reality: By far the two largest sectors of the publishing market are fiction and popular non-fiction. (The latter category includes things like practical manuals—cookbooks, the Idiot’s Guide to everything including idiocy—any and all manner of self-help books, popular biographies and histories, true crime stories, etc.)

Look, let’s be realistic. I dote on Louis L’Amour westerns. I dote on any number of science fiction and fantasy authors. I dote on a smaller but still significant number of mystery authors.

I have read every single Nero Wolfe novel that Rex Stout ever wrote. But the number of times I have even vaguely pondered the advantage of being able to search the text of those novels is…

Exactly zero. Same with Louis L’Amour. Same with Robert Heinlein or Arthur C. Clarke or Ursula Le Guin.

Granted, I also read a lot of history books, and being able to search for something specific is indeed very handy for someone like me, who needs to use history books professionally. That’s why most history books have something called “indexes.” No, the indexes are not perfect. Yes, sometimes—not always—being able to search for something electronically would be easier.

But… but…

Only someone whose enthusiasm for electronic publishing borders on sheer solipsism can honestly think that the advantage of being able to do a somewhat quicker search of text for that relatively small percentage of books he or she would want to search in the first place, is enough by itself to cause an ancient and solidly rooted technology like paper publishing to collapse like a deck of cards.

Or that being able to read in the dark would do it, or that being able to bookmark electronically instead of by using a physical device, or that…

I could go on, but I’d just be belaboring the point. It’s a simple fact—and no technology foreseen will change this fact, either —that the only QUALITATIVE advantage of ebook reading over book reading is storage for most people, and the ability to get around (better, at least) one or another physical handicap for people who suffer from them.

Thazzit. The rest, being blunt, is just bells and whistles. And no technology in the history of the world has ever supplanted a pre-existing technology simply because it offered some bells and whistles. Certainly not a technology as deeply-ingrained into a society’s culture as paper books.

I can visualize in my mind a number of people reading this essay who, by now, are hopping up and down—figuratively, anyway—and deeply indignant because I’m gliding right over all of the subtleties and complexities involved in this issue.

No, I’m not—but I’ll deal with the subtleties and complexities in later columns. Right now, it’s time for the ax and the bludgeon. I do not for one moment think that electronic reading won’t become increasingly important. Of course it will. If I didn’t believe that, I wouldn’t be the editor of this electronic magazine and the publisher of another. (That being the Grantville Gazette, a specialty magazine devoted to my 1632 series.) But, for the moment, what needs to be established is a level-headed sense of what the future holds.

Growth, yes. Expanding significance, certainly. But a new technology that is on the verge of inundating traditional paper publishing?

Oh, hogwash.

And my opinion has the great benefit of being supported—year after year after year—by the facts.

People have been predicting, year after year after year, that “very soon now” electronic reading will take off like a rocket and become to be the dominant form of reading.

And, year after year after year, they are always proven wrong. They remind me of certain religious enthusiasts who keep predicting the end of the world or the return of the messiah “very soon now.” Who are always wrong, year after year after year—but still retain their blind faith.

And that’s what it is. Blind faith. There is no rational reason to believe that e-books and electronic reading will have an explosive growth in the foreseeable future. (Again, outside of some specialty areas.)

The reason I’ve spent time on this is because it’s not simply an interesting intellectual debate. Underlying this issue of how rapidly and to what extent electronic reading will grow is a different issue, and one that has much darker overtones.

With very few exceptions—there are some, but not many—people who insist that electronic reading is about to undergo an explosive growth are also alarmists concerning what that will mean for publishers and authors. They are also people who advocate or at least look sympathetically upon “tough” anti-piracy measures. They are also people who predict that authors will soon be faced with enormous financial pain and challenges because of the advent of electronic reading.

The logic is not hard to grasp. Stripped to its essentials, it goes as follows:

Because traditional paper publishing is on the verge of joining the dodo and the passenger pigeon, rigorous and extensive measures must be put in place very quickly or disaster will befall us.

Right. This is, at best, a recipe for error. It is—at best—guaranteed to produce a lot of half-baked and poorly-thought-through policies and laws. More often than not, it is also a recipe for undermining basic political and civil liberties.

The reality is quite otherwise. Yes, electronic publishing is growing and will continue to grow—not simply in absolute terms, but relative to the size of the publishing market as a whole. But, except for a few areas, the growth is incremental. And —I put a stress here, because I will devote a whole column to this aspect of the problem—the form is predominantly takes is NOT—not not not—that of electronic publishing replacing paper publishing. The principal form it takes is that electronic publishing is increasingly supplementing paper publishing.

The point being, we’ve got plenty of time. Plenty of time to experiment with different measures, and try out a multitude of ways by which publishers and authors can not only withstand the pressure of electronic publishing but actually benefit from it.

What we don’t need is panic. What we don’t need are policies, laws and practices that undermine the long-established traditions, laws and customs surrounding copyright.

 

 

 

 

 

Salvos Against Big Brother:

A Matter of Symbiosis

 

 

In my last essay, I examined the question of whether e-books will be replacing paper books any time soon as the dominant format for publishing. The conclusion I came to was that they wouldn’t be—and that’s true even if “soon” is a term measured in decades, not simply years.

But that issue, taken by itself, would ultimately seem to be a side issue. After all, everyone involved in the debates surrounding electronic publishing and the manifold impact that it has on issues concerning copyright agrees that electronic publishing will continue to grow until it becomes the dominant form of publishing.

So what difference does it make, really, how long that takes? Whether it’s five years or fifty years, or even a century, sooner or later we’ll all have to deal with the realities of a market determined by the imperatives of electronic publishing. It would seem sensible, therefore, to put policies in place now that protect authors and publishers from the dangers of electronic copyright infringement—what’s called “online piracy”—whether or not that infringement causes any significant financial damage to authors and publishers today.

There are actually two issues tied up here, which I’ll need to disentangle and deal with separately. The larger issue is whether or not it’s true that, even if assume a total dominance of the market by electronic publishing, electronic copyright infringement will pose a major threat to the income of authors and publishers.

I’ll deal with that question in the next essay. Before we get there, however, we need to address something else. Namely, is it even true in the first place that, regardless of how long it takes, electronic publishing is “destined” to replace traditional paper publishing?

As I put it in my last essay:

 

2) Will the relationship between traditional paper publishing and electronic publishing be one of replacement? Or will it, instead, be a supplemental one? And, within that range, what are the most likely outcomes? Should we use as a past historical model the relationship between:

a) typewriters and computers—complete substitution;

b) manual transmissions and automatic transmissions—a division of the market;

c) ground personal transport and air personal transport—supplemental, with both old and new technologies used by almost everyone;

d) kitchen knives and home food processors—the old technology remains dominant, with the new one purely supplemental and used by relatively few people.

 

One of the things that’s happened over the past two decades or so, I think largely as the byproduct of the explosive growth of new electronic technologies, is that many people have developed what amounts to a belief in the quasi-magical powers of new technologies as such. Coupled, in many cases, with what amounts to a belief in the magical nature of the technologies themselves.

Think I’m exaggerating?

Then consider, for a moment, how often you’ve heard people pontificate on the subject of the so-called “post-industrial society.” Consider, for a moment, how many times—how many, many, many times—you’ve heard or read some so-called “pundit” assure his listeners or readers that we now live in an “information age” in which wealth is primarily produced by exchanging information, rather than by the crude, ancient and now-obsolete methods of…

Well…

You know. Actually making something.

Apparently, everyone will now make a living by swapping information back and forth. Much the way, in the old fable, two men marooned on a desert island survived by trading rocks back and forth—and had become millionaires by the time they were rescued.

The notion of a “post-industrial society” or an “information age” is literally a belief in magic. It is a belief that “high tech” as such possesses latent and mystic powers that are the quantum mechanical equivalent of a sorcerer’s wand, which can conjure up something out of nothing. No longer, it seems, does anyone need to be engaged in the production of food, clothing, shelter, metals—anything material, in fact. No, no. In the “post industrial age,” we will all make a living by exchanging information about things that no one is making any longer.

The reality is quite different. What has actually happened is that the new electronic technologies have intertwined with existing technologies and made them often vastly more efficient. In some cases—but not very many—the old technologies have been rendered completely obsolete and have essentially vanished. But the most common pattern is for the existing technologies to remain in place, albeit much transformed, and for the new technologies to grow up alongside them. To put it another way, the most common pattern whereby a new technology emerges is not as a replacement for a now obsolete technology. No, it usually emerges either as a supplement to or as a partial alternative to an existing technology. The relationship between the new technology and older ones is far more often akin to symbiosis or commensalism than all-out competition.

Consider wood.

As technologies go, wood is about an ancient as it gets. It’s far more ancient than paper, certainly.

Yet… wood and wood-based technologies are doing just fine, thank you. An enormous amount of building construction, to this very day—and no one foresees any drastic change in the near future—is done by fastening crude pieces of coarsely sawn wood together using incredibly primitive pieces of simple metal that are called “nails” and “screws.” And these, in turn, are driven into place by equally crude tools which carry names like “hammers” and “screwdrivers.” Some of which tools, like hammers, are just as ancient as the wood they work.

Dammit, what happened to all the high tech? Why are we still using primitive and obsolete wood for building material when—long ago, now!—we developed such newer and obviously superior building materials as metals, plastics, and various other composites?

I could go on and on. Why are we still relying almost entirely on people to guide the transport of goods? There are over a million truck drivers in the United States, each and every one of whom is a crude, primitive, ancient and damn-well-oughta-be obsolete piece of software to be guiding immense objects weighing up to forty tons (or more, if the unreliable pieces of software are breaking weight limit regulations) as they hurtle down the highways of the nation at speeds anywhere up to seventy miles an hour. (Or more, if the unreliable pieces of software are breaking speed regulations also—which they are notoriously prone to do.)

As I said, I could go on and on—but I’d soon be flogging a dead horse. Everybody with half a brain knows the answer to these questions.

Wood is not obsolete. Ancient, yes; obsolete, no. In many ways, in fact, it remains a superior building material to any of the more recently developed alternatives. And even when it isn’t, the simple fact that it is often much cheaper to produce and work with more than makes up the difference.

Truck drivers are not obsolete either. Neither are train engineers or airline pilots—or janitors and short-order cooks, for that matter. The simple fact is that, far more often than not, crude and ancient and primitive and unreliable and erratic as they may be, human beings make far better—and certainly cheaper—pieces of management software to guide and handle a task than any computer program yet developed.

There’s a basic principle underlying all this, which is simply a variant of the famous old saw: if it ain’t broke, don’t fix it.

We’ve all heard the saw, and everyone I know not only thinks it’s funny but also subscribes to it. (At least in theory.) But I wonder how many people have ever taken the time to consider why the old saw is actually true to begin with.

I mean… Really. Think about it.

Fine. Gadget A or Technique B or Device C ain’t broke. But that still doesn’t mean—usually doesn’t; in fact, almost never does—that they work all that well in the first place. And it doesn’t mean that you couldn’t figure out a better way to accomplish the same purpose.

So why not “fix it”?

And the answer is…

Because there’s an enormous economic inertia involved. First, it’s going to cost a lot to develop an alternate way of doing something. Secondly—this is the usual rule of thumb, anyway—you can figure it’s going to cost at least as much to get the bugs worked out of the new technology once it’s in place. Thirdly, you’re going to lose the value of the existing technology, which often represents an enormous investment in capital and human skills. And finally… for all you know, the new technology may turn out to be obsolete itself within a short time, replaced by yet another technology—and so now you’ve subjected yourself to all the above costs twice over.

What results are certain basic patterns that you can see, over and over again throughout history, whenever a new technology emerges. “Rules,” if you will.

Rule 1. A new technology will not become important in the first place unless it does something that existing technologies can’t do at all or does them drastically better.

Rule 2. Even assuming those conditions are met, the new technology still won’t become important unless it is perceived as satisfying an important need. Or desire, at least.

Rule 3. Even then, you can pretty much count on most people doing whatever they can to make the new technology fit alongside technologies they’ve already invested money and skills into and are already comfortable with, rather than junking the old technologies altogether.

You can see these rules at work, literally everywhere you go and everywhere you look.

Start with the clothes you’re wearing. They will almost invariably be a mix of materials ranging from ancient to very modern, produced by technologies which are an overlay of many generations of technologies far more than a replacement of one by another by another by another.

Walk outside your home and contemplate the surfaces you’re walking on with feet usually clad in leather—a very old technology, albeit much reinforced by more modern techniques. Most of the surfaces you will walk on—or ride on, when you get into a car—are just about as ancient as much of the material you’re wearing on your body. Far more ancient, in the case of grass—except the grasses you walk on are usually domesticated varieties.

Again, I could go on and on, but I’d soon bore you. Still, it’s an interesting mental exercise which you can do for yourself. Consider, no matter where you go or what you do, how rarely—how incredibly rarely—you will ever find yourself in a situation where you are surrounded only by new technologies.

Never, in fact—unless you do one of three things.

First, go to enormous trouble and expense to eliminate all old and even ancient technologies from your presence and insist on surrounding yourself only with things that are new and high tech and “superior.”

Warning! Do not try this stunt unless you are very wealthy—and even then, be prepared for a long and frustrating struggle before you reach your goal.

The second, considerably cheaper and easier method, is to found in your residential area a new local chapter of the Whig Technology Society. The Whits, as they are known, as those people who subscribe to the Whig interpretation of history as applied to technological change. All new technologies are progressive by definition and are therefore destined to replace all older technologies lock, stock and barrel.

Warning! This is harder than it looks. That’s because while Whits are a plentiful breed, they are hard to coax out of their natural habitat long enough to form a stable local society with a regular meeting place and location.

The natural habitat of the Whit, of course, is the internet—and that leads to the third and by far the easiest method to surround yourself with nothing but new technologies.

Simply go on online and post or blog or otherwise dispense some piece of nonsensical blather predicting the imminent demise of the ancient and obsolete paper book and its replacement by e-books. You will, sure enough, be in a purely high tech environment—nothing but electrons, anywhere you look—and will be joined by many co-thinkers.

True, it will be a fantasy world. But why not? We live in the post-industrial information age society where apparently all everyone has to do is exchange information—yap at each other, basically—and we’ll all get rich.

****

Okay, fine, I’m laying on the sarcasm pretty heavily. But it’s honestly hard not to do so.

Why in the world would anyone in their right mind think that the basic patterns of technological change that I laid out above would not apply to electronic reading?

Consider what is being predicted. Here is what is apparently supposed to happen, in a fairly short time frame:

First, an enormous existing infrastructure is going to be scrapped. Thousands of existing bookstores, warehouses, you name it—not to mention the people working in them—are going to be consigned to historical oblivion.

That initial surgical strike having taken place, the campaign now becomes one of systematic literary attrition leveled against an entire society. In every home in the land where literacy holds any sway, untold millions of bookcases are going to be either stripped out or used for new purposes. (What new purposes? I have no idea. Perhaps some people will use all that now-empty shelf space to display their bunny rabbit collections, heretofore consigned to the attic.)

Untold billions of books will be dumped—most of them in landfills, since obviously the existing used book industry can’t possibly absorb such a sudden influx of product. And, besides, the used book industry is now teetering on the edge of extinction itself anyway.

All across the land, public libraries—awash in the wealth that municipalities will eagerly bestow on them for the purpose, after the taxpayers cheerfully agree to raise their taxes to cover the expense—will spend hundreds of billions of dollars getting rid of their paper books in order to become purely electronic outlets.

And don’t let anyone try to tell you that there’s no need to get rid of all these paper books. Of course there is—if you really expect or want an Electronic Only Reading Age to emerge. If you leave paper books lying around all over the place where anyone can get their hands on them—including innocent and impressionable little children!—you will inevitably maintain the existing social, cultural and economic inertia that makes it so hard to get rid of the musty and ancient things in the first place.

My wisecrack about children, by the way, isn’t actually a wisecrack at all. It’s the plain and simple truth. Even in today’s “computer age,” almost all children are first introduced to reading with paper books—and there is not a shred of evidence that that custom is changing. The number of children just learning to read who are being provided with electronic reading devices and e-books instead of “obsolete” and old-fashioned children’s paper books can probably be counted on the fingers of one hand.

Why in the world would that change? Why would any parent with the intelligence of a carrot saddle their small child with two tasks to learn simultaneously? The ease of handling traditional paper technology is so great that any small child can master the art of handling a paper book in minutes—which allows them to move on almost at once to the critical task, which is learning how to read. Why would any intelligent parent place an obstacle in the way by insisting their child had to also learn how to handle an electronic reading device before they could start reading?

And don’t let anybody tell you that an e-book reader will ever be as simple to use as a paper book. If for no other reason, paper books don’t need batteries so they don’t need to be turned on and off. But what’s far more important is that the very fact that electronic reading only provides marginal advantages to paper reading means that e-book readers will never be simple. Making them simple would eliminate all of the bells and whistles that are the main drawing card for e-book readers in the first place.

In short, trying to use e-books to teach a toddler how to read makes as much sense as teaching them how to ride a bicycle by putting them in a simulator.

Can it be done?

Theoretically, sure. But why bother—when it’s so much simpler and easier to just use the existing technologies and methods?

Remember that, the next time someone wisely informs you that “today’s youngsters” are “accustomed to electronic reading.” Unlike us old farts.

Uh, no. What today’s children are actually accustomed to is not really any different from what we old farts are accustomed to. They view paper books as the standard, so to speak—what you might call the “default mode” of reading. They first learn to read using paper books, just like the generations before them, and they continue to look on electronic reading primarily as a supplement to paper reading rather than an outright substitution.

That’s just one illustration of how deeply rooted the old paper publishing technology remains in our society. Replacing that format of publishing across the board by electronic publishing would be a truly massive cultural change, at an enormous economic cost.

Massive cultural changes have happened before, of course, and they usually do entail enormous economic costs. But such changes are normally driven by powerful imperatives . Whereas this one is going to happen essentially due to whim and a supposedly deeply-rooted human attachment to new gadgets for their own sake. It’s supposedly going to happen simply because the new electronic reading technology provides everyone with…

Well. Let’s see. Lots better storage capacity, the ability to read a book in the dark, some secondary bells and whistles that most readers don’t need and don’t want for most reading purposes—and, without question, a tremendously improved reading capability for people with sight problems or other severe handicaps. All of whom put together, however, have never been a major sector of the book market.

If you believe in the above, you believe in magic. Quite literally. You believe that a new technology, electronic publishing, simply because it’s a new technology, will defy all existing and long-established principles of historical change when it comes to new technology. It will, for reasons which are mystical since they obviously can’t be quantified without making them seem derisively silly, do what no other new technology in the history of the world has ever been able to do. In a nutshell:

Replace, at enormous cost whether that’s measured in money, labor or social disruption, an existing and long-established and very reliable sector of the economy with a new technology that offers only marginal improvements over what already exists.

Like I said, magic.

****

Okay. Here’s what is actually going to happen. More precisely, here is what has been happening for a number of years now:

Electronic publishing is in fact growing. To this day, overall, the growth has been modest, and there is no sign at all that this is changing soon. But, in some areas of publishing, the growth has been rapid. Sometimes, extremely rapid—and, sometimes, so extensively that it has largely replaced paper publishing.

When we look at these areas of specialty publishing, however, what we discover—which should come as no surprise at all—is that in these areas the basic principles I laid out above do apply.

The most obvious example is encyclopedia publishing.

You can still, today, buy a paper edition of the Encyclopedia Britannica .

It will cost you about $1,400.

Or, you can buy the electronic edition of the same encyclopedia for $39. And get regular updates very cheaply, where there is no practical way to update a paper encyclopedia without buying an entirely new edition at the same cost.

In such specialty areas of publishing, the new technology does satisfy my Rule Number One of technological change: A new technology will not become important in the first place unless it does something that existing technologies can’t do at all or does them drastically better.

In this instance, “drastically better” means the ability to produce an electronic encyclopedia for a tiny fraction of the cost of a traditional paper encyclopedia. You can buy an electronic edition of an encyclopedia for less than three percent of the cost of a paper one.

But there is no such drastic cost advantage in most areas of publishing—and very little at all in those branches which dominate the industry. (To remind you, those are popular non-fiction and fiction.) Yes, there’s a difference between $4 and $8, or $6 and $16, but it’s not the same sort of difference and doesn’t produce the same sort of rapid and overwhelming change. It probably would, of course— if people bought a lot of books every week. But they don’t, as a rule. Even people who read a lot don’t usually buy more than one book a week, on average. And most readers buy fewer than that.

Encyclopedias are not the only example, of course. There are any number of others. Almost any type of publishing which mostly involves making lots of data available that most people will only use small portions of at any given time—reference books and materials of all kinds, essentially—will become primarily electronic branches of publishing very quickly. In some cases, it’s already happened. That’s because the cost differential is usually very large, and the discomfort of use very small. Most people don’t particularly enjoy reading an entire novel on an electronic device. But almost everyone accustomed to computers is already perfectly comfortable extracting some information from a screen.

There are some other examples. As the existence of this magazine itself indicates, electronic publishing provides some major advantages for periodical publishing. It’s almost impossible today, given the cost and limitations of the modern magazine distribution system, to produce a paper magazine at a profit—or even at break-even cost—without depending primarily on advertising revenue. For many periodicals, that’s feasible. But for many others, it’s not—and electronic publishing often provides a way to circumvent the problems, at least to a degree.

Still, when all is said and done, most publishing isn’t very affected by the advantages of electronic publishing. There are some advantages, certainly—which is the reason electronic publishing grows at all. But the advantages simply aren’t great enough to produce the sort of overwhelming technical transformation of an entire industry which is a rare event historically in any case.

So, not surprisingly, what we’re seeing is the most common pattern by which a new technology emerges: Not by sweeping and complete replacement of what exists, but by growing up alongside the older technologies over time. And doing so as the result of literally billions of trial-and-error tests by millions of human beings experimenting with the new technology.

A clear pattern is already shaking itself out. For most reading purposes, most of the time, most people prefer paper format publishing. That remains and seems likely to remain for a long time what I called above the “default mode” of publishing.

There is no reason to expect this to change except at a pace that can be described as almost glacial.

Why should it? There is no shortage or paper and ink or the raw materials from which they are made, and while the production of paper does place a definite stress on the environment, it’s simply not great enough compared to many others to require drastic action to suppress it as much as possible.

On the flip side, the advantages of paper publishing are genuinely immense. This is one of the most reliable and well-tested technologies the human race possesses. It is incredibly durable. It is incredibly easy to use. It is incredibly difficult to suppress. It is incredibly well-rooted in every literate culture in the world.

At the same time, because there are undoubtedly some advantages to electronic publishing in all branches of publishing and major advantages in some branches, electronic publishing is growing and spreading out. But, as a rule, it does so as a supplement to paper books rather than a replacement for them.

Here is, by far, the most common pattern we’re seeing emerge:

What most people want, most of the time, is both formats of the same book. They want an electronic edition of a given title alongside the paper edition, not instead of it. Not one or the other, but both.

That’s because they use them for different purposes. For most people, most of the time, reading on paper remains the preferred “default mode.” But, for many people, they also find it handy some of the time to be able to read the same text electronically.

Here is one very common pattern, reported to me by any number of people:

They begin a novel at home, reading it in a paper edition. Then, bring an electronic edition with them when they travel—even if that travel is simply a short commute to work on a train or subway or bus. For traveling purposes, the storage advantages of electronic publishing become far more important than they do while reading at home. And there’s the added advantage, reported to me by one person, that she can read a novel on a PDA in a boring staff meeting at work because her boss thinks she’s taking notes. You can’t do that with a paperback, especially one with a lurid cover.

It was this pattern that Jim Baen detected very early in the development of electronic publishing. And it was this pattern, along with his expectation that it would continue indefinitely, that guided him in determining his policies as a publisher. He was right ten years ago, when he decided to launch a major electronic publishing effort on the part of his publishing house—and he’s still right today, two years after his death.

But I’ll get into that subject in later essays, when I move on to examine the kind of policies publishers and authors should be adopting in this day and age. For the moment, I need to keep concentrating on the demolition work, so to speak.

So let’s recapitulate. So far, in the last two essays in this column, I’ve demonstrated the following:

1. Electronic publishing is expanding, but outside of a few specialized areas like encyclopedia publishing, the expansion is rather slow. There is no reason to expect that to change in the future. To put it another way, there will be no “magic moment” when the introduction of The Finally Perfect E-Reader X, Y or Z will suddenly produce a drastic change in the situation. Paper publishing will remain the dominant format in the industry for decades to come.

2. As electronic publishing does grow, it usually grows alongside of or as a supplement to paper publishing, not in place of it. The relationship between the two publishing formats is primarily one of symbiosis or commensalism, not antagonism or competition.

That leaves one question still to be addressed:

Even if it’s only a mental experiment at the moment, what would happen if electronic publishing did become the dominant form of publication—or even the almost exclusive form? What if any changes would be needed in the various policies that I’ve advocated so far?

This question will take me at least one essay to answer. But the gist of the answer is this:

No changes of any kind are needed—for the good and simple reason that electronic publishing never posed any problems for a sound understanding of copyright in the first place. The sky is not falling, it was never falling—and it’s not going to, either.

 

 

 

 

 

Salvos Against Big Brother:

The Nature of Transitions

 

 

I left off at the end of my column in the last issue of the magazine by posing the following question:

 

Even if it’s only a mental experiment at the moment, what would happen if electronic publishing did become the dominant form of publication—or even the almost exclusive form? What if any changes would be needed in the various policies that I’ve advocated so far?

 

In the end, it’s the answer to this question that underlies the position on electronic copyright issues taken by just about everybody in this debate. Why? Because the “trump card” that advocates of restrictive polices and harsh penalties always haul out is this one. They may concede many other things, in the interim, but what they argue is that:

1) In the final analysis electronic reading will become the dominant format for publishing, and when that happens—

2) Electronic piracy will becomes a monumental problem for authors and publishers, possibly an insurmountable one.

I’ve even seen some people go so far as to argue that authors will soon be deprived of their livelihood altogether, if the looming menace of online piracy is not dealt with. The fact that this argument rests upon the preposterous notion that the existence of a given branch of production is determined by a specific form of paying for the labor required does not prevent people from advancing it.

And it is an absurd notion. The reason authors can make a living is not because of copyright or any specific form of compensation. It’s because there is a demand for their product, which is stories. That demand is just about as stable and steady as any economic demand in the world, short of food and clothing and shelter. So far as archaeologists and anthropologists have been able to determine, story-telling is the oldest art form practiced by the human race and there is not one culture that has ever existed that does not engage in that art form.

In short, an economic activity that is at least one hundred thousand years old, economically and culturally ubiquitous, and just about as deeply rooted in human society as the production of food, is…

Going to vanish, because of Ye Dastardly Online Pirates.

For Pete’s sake. The worst that electronic piracy could possibly do would be to force a complete change in the methods by which authors and publishers derive their income. That’s…

Possible. After all, the forms of payment which authors have received over the centuries have changed quite a bit and have always been subject to fluctuation. As for publishers, the publishing enterprise itself didn’t really exist in the modern sense of the term until the advent of the copyright era in the early eighteenth century. Prior to that time, “publishers” were either patrons or printers, who paid for the publication of something either by shelling out money from their own pocket or by doing the printing themselves.

But so what? Making a living a different way is still making a living. The only thing that could even theoretically deprive authors of a livelihood would be if someone invented an artificial intelligence that was capable of writing stories that were as good as stories written by humans.

Is that possible? In the short run, no. The forms of artificial intelligence so far developed have two characteristics in common. They are all far superior to human intelligence when it comes to what you might call brute force numbers crunching. And they are vastly inferior to human intelligence—or even animal intelligence—when it comes to anything intuitive. That’s why even very expensive AIs, such as planetary rovers, have a difficult time doing something as simple as navigating across a surface—which any toddler can do quite easily. Or an insect, for that matter.

Story-telling is not numbers crunching. In fact, it’s about as far removed from it as I can imagine. The ability to tell stories well is so completely bound up with the author’s life experience that it’s hard to even imagine how you’d train an AI to do more than rudimentary story telling.

(An aside, here. Yes, I know that some AIs have already been programmed to “tell stories,” just as some AIs have already been programmed to carry on a conversation. What happens in both cases, however, is that the story and the conversation only work within very tightly defined limits.)

In the long run…

It’s an interesting question, actually, and one that lends itself to science fiction. My own view of the matter is that if an artificial intelligence is eventually developed that can tell stories as well as a human being, then that AI has a reasonable claim to being a person, not just a machine. And, that being so, the person is entitled to get paid for its work just like any other person. Or you have slavery.

But I’m going to leave that aside, here. There is certainly no projection by anyone that I know of that, in anything like the foreseeable future, any kind of artificial intelligence will be able to replace authors. So, for the purposes of this series of essays, I’m going to assume that if people want stories, they have to have authors to produce them.

That being so, how could authors not get paid? The form of payment might change, but the fact of it can’t.

And, indeed, in the many centuries—no, millennia—prior to the advent of copyright, authors existed and they did indeed get paid. Usually, of course, “authors” were story-tellers, since the trade was primarily an oral one until the invention of the printing press.

How did they get paid? By patronage, in one of two main forms: private or public.

The principal form of private patronage was for a wealthy individual to pay for the production of stories. In essence, the author did what amounted to “work for hire,” except for a single person instead of a publishing house or company. He or she wrote the story and exchanged it for an agreed upon sum. Thereafter, the author had no right to any further income from the story.

Public patronage took various forms. The most common was the activity that’s called “busking.” Here’s the definition of the term by Webster’s Unabridged Dictionary:

busk ( v.i. ): to entertain by dancing, singing, or reciting in the street or in a public place.

Musicians and mimes have never stopped busking. You can find street musicians in most cities in the world. Mimes and other dramatic street performers are less common, but you can find them also. If you walk down La Rambla, Barcelona’s famous central boulevard, you will see one living statue after another. Each of those performers, as is true of busking musicians, depends upon voluntary contributions from the public for their income.

In times past, many story-tellers made a living the same way. And there’s a resurgence of busking for story-tellers today, which takes the form of posting stories on the internet and asking for donations.

But there were other forms of public patronage. Plays have been staged by cities throughout human history, in many civilized cultures, and until relatively recent times the cost of producing those plays—which includes, obviously, the cost of paying the playwrights—was borne by the municipality. Or, perhaps, by a major religious institution in that municipality.

Of course, the form of payment does have an impact on the type of story produced. It’s not an accident that the dominant modern form of story-telling, which is the novel, is almost entirely a phenomenon of the copyright era. That’s because of two factors: First, from the author’s viewpoint, writing a novel requires many months of labor. Secondly, it’s a difficult form of story to sell to a large audience. By the nature of the story, novels are intended to be read by one person at a time.

So, in the pre-copyright era, the principal forms of story-telling were either purely verbal recitations—a good example being the various medieval legend cycles—or they were stories that were adapted for public performances. That means plays, basically.

They weren’t the only forms. Poetry was often a prominent form of story-telling, also. (People don’t usually think of poems as “stories,” but that is in fact what they are, albeit often told in a very stylized manner. That’s true even of something like a haiku, in the final analysis.) That’s because poetry lends itself very well to patronage, where novels do not.

The point here is that, in the worst conceivable eventuality, the transformation of publishing into a predominantly electronic form might force authors to change the form in which they told stories. It might, conceivably, force authors to either abandon old methods and develop new ones or lose their livelihoods.

And… so what?

Being blunt about it, a person has a right to try to make a living as a story-teller. You do not, however, have the right to dictate to the public the form in which you choose to tell the story. That’s their prerogative, not yours.

In fact, the public’s taste has continually changed over time, forcing authors to adapt. And, every time a change needed to be made, not all authors were able to make the adaptation. That was tough for them personally, of course, but that’s just the nature of the trade of story-telling. It’s a very chance way to make a living, and always has been.

Let me give you an example of such a change, from the history of science fiction. In its origins, science fiction was a predominantly short form genre. Outside of a few early novels by a handful of authors like Jules Verne and H.G. Wells, most science fiction writers beginning in the early decades of the twentieth century made their living—insofar as any of them made a living at it at all, which was only a handful—writing short stories for magazines. Occasionally, an author was able to get a novel published, but in that era of the science fiction genre novels were few and far between.

So, an author depended on writing short stories, for the most part. And, not surprisingly, this state of affairs benefited authors who were adept at writing short fiction, and penalized authors who were naturally inclined to write much longer stories.

Then, during the course of the 1960s, the genre went through a profound sea change. Science fiction and fantasy went from being a predominantly short form genre to an overwhelmingly novel genre, in a period of about a decade. The change began in the early 1960s and was over by no later than 1975.

Today, the few science fiction and fantasy magazines still in existence are struggling. Adjusting for inflation, they no longer pay anything close to the rates they paid for short stories half a century ago. Today, it is absolutely impossible—no matter how productive they are and how well-published they are—for a science fiction author to make a living by writing short stories. You simply can’t do it. Even if you got three short stories published every month—a production rate that no author has ever maintained in history—you’d earn less than $10,000 a year, which would put you below the official poverty rate even as a single person.

It was never easy for an author to sustain themselves, writing short fiction. But, especially if they could get a handful of novels published over a career, they could manage it. Today, they can’t. There’s simply no money for short fiction, worth talking about. The market for it is now so small that producing short fiction is, for any commercially successful science fiction author, a pure sideline. (In terms of money, at least. Some authors may continue to write a lot of short fiction either for the personal pleasure or for the sake of winning literary awards, or both. But they do not depend on that writing for an income. They can’t.)

To give you an example of how minor an aspect of an author’s income short story writing has become, I’ll use myself as an example. My first novel, Mother of Demons, was published in September of 1997. My first collection of short fiction, Worlds, is scheduled to be published in February of 2009. And in the eleven and a half years between the appearance of those two books, I will have published something like thirty novels. And I’m only publishing this one volume of short fiction on a “what the hell, why not?” basis. I offered it to my publisher for no advance at all, just royalties.

Granted, I’m quite a ways toward one end of this spectrum—but I’m by no means at the extreme edge. There are some very successful science fiction and fantasy authors today who have never published any short fiction. Never. Not once. That would have been completely impossible thirty or forty years earlier, for the good and simple reason that they couldn’t have gotten published at all.

And, sure enough, that profound change in the market punished some authors and benefited others. To start with the happier side, the change was a blessing for an author like Frank Herbert. Herbert wrote short fiction, to be sure. Like any science fiction author at the time, he had no choice. But it was never particularly easy for him, compared to some other authors.

In his first decade as a writer, beginning in the early 1950s, Herbert published about twenty short stories. During that same stretch, Christopher Anvil—an author for whom short fiction came naturally and easily—published almost twice as many stories. To look at it from another angle, Herbert never got more than four short stories published in a single year, and he only managed that twice—in 1954 and again in 1958. In contrast, a natural short story writer like James H. Schmitz published nine short stories in 1962 and did it again in 1965.

Christopher Anvil had an even more impressive streak: eight stories in 1964, eight stories again in 1965, eleven stories in 1966, eleven stories again in 1967, and six stories in 1969. In a short five years, Anvil published about as many short stories as Herbert did in his entire career, which spanned more than three decades.

And Frank Herbert was in no sense a failure. He was a successful writer, even in his early years. He simply wasn’t a writer for whom short fiction came naturally and easily. Still, he adapted as best he could to the demands of the market and soldiered on. Then, the market began to change, and Herbert came into his own. By the 1970s, he was one of science fiction’s major and most successful novelists.

On the flip side of the coin, James Schmitz and Christopher Anvil hit hard times in the 1970s. Although both of them wrote a few short novels—four, in the case of Schmitz (one of which was really a long novella) and five in the case of Anvil—they were naturally short form writers, and struggled once the market changed.

Schmitz never made the transition at all. His last two stories were published in 1974, and they were probably written two years earlier. He was still a relatively young man at the time. Well… not old, at any rate. He was sixty years old in 1971—a year younger than I am, as I write this essay—and he still had a decade of life ahead of him. But for all practical purposes his writing career had ended.

Anvil kept going. But a writer who had been very prominent as a science fiction short story author in the fifties and sixties now faded from the scene. He published only nine stories in the rest of the 1970s, after 1972—fewer stories than he’d published in some single years, in his heyday. Then, eight stories in the 1980s, and four stories in the 1990s. The last of them was published in 1995.

Then… nothing, until I bought a story from him for one of the anthologies of his writings I was assembling as editor, in 2005, and a second one that I bought from him for Jim Baen’s Universe in 2006. The point being that the man is still perfectly capable of telling a story, it’s just that the market changed under him.

So it goes. That was not the first time such a literary transition has happened in history—not by a country mile—and it’s not going to be the last time. Look back over the centuries of literature, even restricting it to the English language, and you’ll see continuous and complex changes taking place in the publishing market—each and every one of which forces authors to adapt to them.

Did you ever wonder why the novels of Fyodor Dostoyevsky always seem to drag in the middle? Typically, they start with a bang and end with a bang. But the middle…

Why,exactly, does Brothers Karamazov need to be nine hundred pages long?

Well, literature professors will insist that’s because of the innate essence of the story, it being a recognized masterpiece of world literature. And I’m certainly not going to quarrel with that judgment of the novel, taken as a whole, because I agree with it. But as a commercially successful professional author, I will also tell you a darker side of the truth. “Darker,” at least, if you view literature as a sacrosanct and well-nigh saintly pursuit which is untainted by any coarse material concerns—a view of the trade which almost no actual practitioner has ever taken. Me, I just think it’s funny.

Here’s the truth. Dostoyevsky had a gambling problem, was chronically in debt—and the standard form of publishing novels in his day was to serialize them in magazines. So, in order to sell a novel to a magazine, he’d send the editor the opening chapters. Those, typically, were brilliant. To this day—allowing for the fact that I have to judge based on translation—I think the opening hundred pages of so of The Idiot is the best writing by any novelist at any time or place.

Then… well, bills had to be paid. Bills to gamblers, to make things worse. And if you’re a good writer—much less a literary genius like Dostoyevsky—it really ain’t that hard to figure out ways to…

“Extend” a story, we’ll call it. Chapter after chapter after chapter after chapter, since that’s how you get paid. By the chapter.

(If you’re wondering, that is not how authors get paid for a novel today. I will negotiate a lump sum with my publisher, to be paid in various installments. Typically, two: half the advance on signing, half on delivery and acceptance of the manuscript. There will be no stipulation as to the length of the novel, although it’s tacitly understood that it will be at least one hundred thousand words long and will not exceed two hundred thousand words unless I discuss it with my publisher. And no mention will ever be made of how many chapters the book might have.)

Charles Dickens published under the same set of circumstances as Dostoyevsky, by the way, which I personally suspect explains at least in part the length and structure of his novels.

My point here is not to ridicule any authors. (Or publishers, actually, since if anyone got taken to the cleaners it was them.) I’m simply making the point that the specific way that authors make a living is inextricably and intricately tied to the specific structure and demands of the market at any given time. And that, in turn, is determined by many things—not the least of which is the dialectic between a given technology and a given audience interest.

I do not doubt for one moment that the changes that have taken place and are taking place in the technology of publishing, the shift—however slowly or quickly it takes place—between paper and electronic publication, will over time have a profound impact on the specific way that authors make a living. I don’t doubt it, because you can already see it happening.

But that is not equivalent to a threat to the livelihood of authors, as such. The fact that some authors will suffer from the change is no excuse for them or anyone else trying to prevent those changes by legal fiat. They have no more “right” to a specific way of earning money as authors than authors have had at any point in the past.

Had James H. Schmitz or Christopher Anvil advanced the proposition, in the late 1960s, that legal measures should be implemented which ensured that their preferred style of story-telling remained the dominant one in science fiction, they would have been subjected to ridicule. And rightly so.

Yet the fact is that many of the proposals—and certainly the logic of the arguments—advanced by people today with regard to the advent of electronic publishing and the “threat” of online piracy are every bit as ridiculous and absolutely no different in their underlying logic. Under the claim of “protecting the livelihood of authors” what they are actually demanding is that legal policies be adopted that protect specific authors who choose to tell stories in a specific manner and sell them in a specific format.

This is a point that Cory Doctorow has made a number of times in various essays he’s written on the subject, for which he invariably gets pilloried by some authors. But the problem isn’t with Cory, it’s with his critics. I don’t always agree with Cory on the various issues involved with the general subject of copyright—at least, in terms of what we each emphasize and don’t—but on this issue, he’s absolutely right and his critics are absolutely wrong.

So let me finish this essay by making this point as clear as I can:

If electronic publishing—and that includes the reality that it’s very easy to “pirate” electronic text—is a form of publishing that some authors and publishers have a hard time adapting to, then that’s just too damn bad for them. As my father liked to say whenever I’d whine about something as a boy, “things are tough all over.” If they can’t cut the mustard, then it’s just a fact that over time they will fade away.

What they have no right to do is to demand that their present situation be enshrined by law. What they have no right to do is to demand that copyright “protection” be made so restrictive and onerous for the public that the fundamental purpose of copyright is actually undermined.

Here’s the flip side of the matter, which these doom-predictors never want to acknowledge or admit. Changes in publishing have been happening for centuries. They always harm some authors and they always benefit some other authors. And the same is happening today, as electronic publishing grows in importance.

Some authors may be harmed by that growth—although I should state here, for the record, that I have yet to see a single author advance a persuasive case that they’ve been so harmed. What is absolutely certain, however, is that other authors have benefited from the change.

How do I know that’s true? Because I’m one of them. One of the most prominent ones in science fiction, in fact. I’ve learned—and I’m still learning—how to use the changes in publishing to my benefit. Just as my publisher, Baen Books, has done the same from its standpoint as a publishing house.

In later essays, I’ll explain why the fears of people concerning the “danger of online piracy” are grossly out of proportion with the reality, even if we assumed that all publishing was electronic. The worst of those fears are just plain silly. In point of fact, the changes that will be forced upon authors and publishers by the inexorable demands and features of electronic publishing—and, yes, ease of “piracy” is one of those features—are very small compared to the enhanced opportunities that come with it. And I’ll also describe, in considerable detail, the various methods that I’ve used and Baen Books has used to take advantage of the new opportunities created by electronic publishing. What will become obvious is that while electronic publishing certainly requires some adaptations, the adaptations are really pretty small potatoes—certainly when compared to the benefits accrued as a result.

But even if it were true that the growth of electronic publishing forced drastic changes in the way authors chose to tell stories and make a living from them, then that would simply be something they’d have to accept. Those of them who could adjust to the change would prosper; those who couldn’t, would not.

And what else is new? That’s the nature of transitions.

 

 

 

 

 

Salvos Against Big Brother:

Adventures with a Search Engine

 

 

In this essay, I’m going to continue analyzing the following question, posed at the start of my last essay:

 

Even if it’s only a mental experiment at the moment, what would happen if electronic publishing did become the dominant form of publication—or even the almost exclusive form? What if any changes would be needed in the various policies that I’ve advocated so far?

 

In the last issue, I took up some preliminary questions involved with this problem. Now, let’s move on to the heart of it:

What effect would there be on traditional copyright practices if all publishing became electronic?

Not some, not even most, but all books. The only paper books still produced would be purely luxury items designed for interior decoration. Expensive, limited-run leather-bound copies, which couldn’t begin to support authors and any publishers beyond a small number of specialty houses.

What then?

The answer universally advanced by advocates of DRM is that doom would be upon us—unless the most stringent and harsh measures were put in place to protect copyright from the inevitable horde of slavering online pirates who would soon plunder all the works of legitimate authors, drive publishing houses into bankruptcy, and inaugurate a literary Dark Age.

How could it be otherwise? they argue. If books are readily available for free due to the ease of pirating unencrypted electronic text, why would anyone continue to pay for them? Adieu, the livelihood of legitimate authors! Adieu, the profits—nay, the very wherewithal—of honest publishers!

What’s wrong with this picture? (I leave aside the rather blatant projection involved, as psychologists might say.)

Well, any number of things. But let’s start with the central evasion. You can find it here:

“If books are readily available for free—”

STOP.

I’m going to spend the rest of this month’s essay analyzing this weasel phrase.

“Readily available.”

What exactly does that mean? Readily available compared to what ?

And it does have to be compared to something. The weasel involved here is the implication that “readily available” is an ontological category of its own; something which can be gauged by virtue of its inherent essence.

But that’s pure blather. “Readily available” is, always has been and always will be a relative term. It has no meaning outside of a context.

An example: salt.

Salt is now readily available. You can go into any supermarket and almost any market of any kind selling food, down to and including gas station mini-marts, and you can pick up a box containing over a pound of salt for less than a dollar.

And, as a result, salt is almost never stolen by shoplifters. Why bother, when it’s so easy to find and so cheap?

But it was not always so. At many times and places in the past, salt was extremely valuable and had to be carefully guarded. For centuries, for instance, there was a constant barter of salt for gold between north Africa and the great medieval empires and kingdoms of West Africa. Caravans would cross the Sahara for the purpose—and had to be protected by armed guards whether they were carrying gold or salt.

Let’s take another example: free roads versus toll roads.

There was a time in American history—and much of world history, for that matter—when you had not much choice except to take a toll road, if you wanted to travel any long distance. That was especially true if you were hauling wagons with bulky commercial products.

Today, that’s no longer true. You can travel by motor vehicle (or bicycle) almost anywhere in the continental United States while avoiding toll roads. That includes hauling almost any kind of commercial load, of any legal weight. The only toll roads that still exist are a tiny number, compared to the overall mileage of roads available.

Yet… those toll roads do a good business. Why? Because they are strategically placed to provide a significant convenience to customers at a comparatively low cost. More precisely, given that time spent is usually money lost, toll roads are actually a savings for most people.

Again, an example. I live in northwest Indiana, not far from Chicago. In fact, except during rush hour, I can drive from my house to downtown Chicago in about half an hour.

If I take the toll bridge. That’s known as the Chicago Skyway. It’s an elevated road that crosses the mass of roads, canals, railroad tracks and industrial facilities that are located near the state line between Illinois and Indiana in the southeast area of metropolitan Chicago. (Over half of all U.S. steel production takes places within a fifteen mile radius of my house.)

It’s expensive, too, as toll bridges go. The charge is $2.50 each way; five dollars for a round trip.

Does anyone need to take the Skyway to get from northwest Indiana to Chicago?

No, of course not. There are two major alternatives, and a host of minor ones. The first is to stay on interstate highways which are not toll roads. You can take I-80 west to I-94, and then travel north on I-94 until it merges with I-90 (which, for a stretch, runs along the Chicago Skyway and is a toll road). Voila.

Of course, you’ll add at least twenty minutes to the trip, each way, and quite a bit more than that during rush hour. You’ll also burn more gasoline, partly because it’s a longer distance and partly because you’re far more likely to get stalled in stop-and-go traffic for a while.

Alternatively, you can take city streets. Get off I-80 on Indianapolis Blvd., also known as U.S. 41, and you can take that north all the way into Chicago. Eventually you’ll find yourself on Lake Shore Drive, which will take you right downtown. Voila.

Of course, you’ll add at least half an hour to the trip, each way, although it won’t matter so much whether it’s rush hour or not.

Leaving aside the extra cost of the gasoline and the wear and tear on your vehicle, how much is your time worth? For most people, unless they’re just sightseeing, time is valuable.

How valuable? Well, obviously, that estimate will vary from one person to the next. I know plenty of people who seem to have a very low estimate of the value of their time. At least, that’s the only conclusion I can come to, seeing that they stubbornly refuse to pay the $5.00 toll to use the Skyway and insist instead on using alternate and much longer routes.

As for me, I was a machinist for a long time before I became a full-time author, and I still tend to gauge the value of my time by those standards. Leaving aside the value of the various benefits that came with my wage package—medical benefits, vacation pay, holiday pay, etc., etc.—I was earning about twenty dollars an hour by the end.

So I figure that’s what my time is worth. (It’s actually worth quite a bit more, these days, but never mind. Trying to gauge the value of an author’s labor time is a lot trickier, and who cares? Twenty bucks an hour is plenty good enough for these purposes.)

By using the Chicago Skyway every time I travel to and from downtown Chicago from my house, I figure I save about an hour of my time. In monetary terms, I save about twenty dollars—at a cost of five dollars. My “net gain,” so to speak, is fifteen dollars. More precisely, my net loss is twenty-five dollars (one hour round trip travel plus $5.00 toll) instead of forty dollars (two hours round trip travel with no toll expense).

So, I use the Skyway. I haven’t used any alternate route into Chicago in many years, unless I had some specific reason to do so.

And I not only don’t steal boxes of salt, it doesn’t even occur to me to steal them as a mental experiment, unless I’m writing an essay on the blithering stupidity of DRM.

The point to all this should be obvious. Whether or not people will steal copyrighted electronic material is first and foremost determined by the relative ease of doing so, measured against the relative cost of buying the legitimate product. Please note that I am bending over backward to satisfy my opponents by accepting their premise that, given the opportunity, all people will always steal instead of paying for something. (For the record, I do not agree with that premise. In fact, I think it’s downright silly as well as offensive.)

So let’s now analyze that issue. Just how easy is it, anyway, to steal copyrighted material?

Again, I will bend over backward to satisfy my opponents in this debate. I won’t even get into the issue of how easy it is to pirate copyrighted material in the first place. Which it isn’t, actually. Most “pirates” get a paper copy of a book and scan it. Even if they don’t do any proof-reading at all to remove scanning errors, which takes many hours to do properly, they still have to take the time to scan the book. That usually has to be done manually, one page at a time.

Instead, I will begin with the assumption that someone has already produced pirated editions of every book ever written and made them available somewhere on the internet.

Okay, now what?

One of my standard debater’s tricks when I give a public speech on this subject, and get to this point in my argument, is to start waving my arms enthusiastically and urge everyone in the audience to—

Please! As soon as you get home, go to your computer and STEAL ONE OF MY BOOKS!

And I predict that they will discover that’s easier said than done. Especially for that ninety-nine percent of the reading public which does not have any expertise on these matters.

Here’s what most people will do, if they want to find a pirated edition of one of my books. They will enter my name into the search bar in Google and see what turns up.

The results, of course, will vary slightly from one day to the next. But, as of the day that I’m writing this essay—Sunday, July 20, 2008, at 12:41 Central Standard Time—here’s what turns up:

On the first page, all ten entries refer to me (not some other Eric Flint) and all ten are legitimate sites. As follows:

Site 1: This is Google’s own site, identified as: “Books 1 – 10 of 376 on inauthor:Eric inauthor:Flint.”

And—oh, joy!—this site goes on and on for pages, listing all of my books (most of them, anyway; I didn’t do a precise count) and where you can find legitimate copies of them. Many of them for sale.

Let’s hear it for Site 1. Moving on…

Site 2: http://www.ericflint.net/

This is my own web page. I’m all for it. Nothing here but legitimate copies—some free, mind you, at my choosing. But most are for sale.

Site 3: This also takes you to my web site and it’s a reference to my recent appearance as the Author Guest of Honor at MidSouthCon in Memphis, Tennessee.

Also legitimate, needless to say.

Site 4: http://en.wikipedia.org/wiki/Eric_Flint

This is a long entry on me in Wikipedia. A site like this, from a narrowly commercial standpoint, is entirely in my favor. It amounts to free promotion.

Site 5: http://www.baen.com/author_catalog.asp?author=EFlint

This will take you to my catalog page in the web site of my publisher, Baen Books. In other words, it is as legitimate as it gets. And, naturally, you can buy my books here.

Site 6: http://www.baen.com/library/eflint.htm

This takes you to my page in the Baen Free Library, where you can obtain books of mine for free. This is also a completely legitimate site.

Something of interest here: Even this site, which is completely legitimate and contains nothing but free electronic texts of mine, ranks no higher than sixth in a Google search.

Site 7: This is another Google site, and will take you to a list of reviews of my most popular novel, 1632. That novel is available for free in the Baen Library and has been for years, by the way. A site like this is simply more promotion, from a commercial standpoint, even though it didn’t cost me or my publisher anything.

Site 8: http://baens-universe.com/articles/McCauley_copyright

This takes you to the web page where I put up Macaulay’s speeches on copyright, which I have frequently cited in these essays in this magazine.

Site 9: Another Google site, this one referring to the first volume of the Grantville Gazette. I publish the Gazette as an online magazine—we’re now putting out the nineteenth issue—and Baen Books publishes the paper editions of it. This is another perfectly legitimate site and one which helps to promote the Gazette in particular and the 1632 series in general .

(If you’re interested in the Gazette, by the way, you can find it here: http://www.grantvillegazette.com/ )

Site 10: This is another legitimate site offering free books of mine: http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Flint%2C%20Eric

Shall I go on?

Site 11 is a Google site providing reviews of another novel of mine, The Course of Empire, co-authored by Kathy Wentworth. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 12 is an interview with me concerning my novel 1812: The Rivers of War. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 13 take you to a page in Barnes & Noble where my works are offered for sale. (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

Site 14 is a Google site providing reviews of another novel of mine, The Wizard of Karres, co-authored by Mercedes Lackey and Dave Freer. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 15 takes you to one of the better-known sites listing SF authors and provides a comprehensive bibliography of my work. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 16… Ha! That takes you to this very magazine and links you to the essay I wrote in this column for the last issue. (LEGITIMATE SITE. PART OF THE RIGHTEOUS FIGHT AGAINST DRM. HELPS PROMOTE MY WORK.)

Site 17 is a Google site providing reviews of another novel of mine, In the Heart of Darkness, co-authored by David Drake. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 18 takes you to the Amazon page where my novel 1632 is offered for sale. (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

Site 19 takes you to Baen’s Webscription service where you can buy electronic editions of my work. (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

Site 20 is a Google site providing reviews of my first novel, Mother of Demons. It’s worth noting that that book came out eleven years ago, has been available for free in electronic format in the Baen Library for eight years—and it’s still in print. In fact, Baen is planning to produce another edition of it soon. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Well, that’s the first twenty sites. But let’s keep going, shall we? Surely we have to run across a Nefarious Pirate Site before too long. The internet equivalent of Port Royal or Tortuga, so to speak.

Site 21 takes you to Simon & Schuster’s web page where you can buy my books. (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

Site 22 takes you a review of my various essays against DRM. (LEGITIMATE SITE. PART OF THE RIGHTEOUS FIGHT AGAINST DRM. HELPS PROMOTE MY WORK.)

Site 23 is a Google site providing reviews of another novel of mine, An Oblique Approach, co-authored by David Drake. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 24 is the web page of an artist who asked my permission some time ago to post his illustrations of various novels of mine. The site also contains links to other sites which, one way or another, serve to promote my work. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 25 is a highly critical review of my novel 1812: The Rivers of War. In my opinion, it’s an extremely stupid review as well, in the sense that reviews which are obviously driven by the urge to find fault no matter what invariably wind up being stupid. But, admittedly, mileage varies. Someone else reading this review might think it was the best thing since sliced bread.

I can’t honestly say this is a site that “promotes” my work, but…

(LEGITIMATE SITE. NOT A PIRATED COPY TO BE FOUND.)

Site 26 is a Wikimedia site about me. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 27 also takes you to the Amazon web page where my novel 1632 can be purchased. (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

Site 28—oh, well, it had to happen sooner or later—takes you to a web page referring to some other Eric Flint than me.

That said…

(LEGITIMATE SITE. NOT A PIRATED COPY TO BE FOUND.)

Site 29 takes you to another bibliographic listing of my work. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

Site 30 also takes you to another bibliographic listing of my work. (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

That’s thirty sites—and I still haven’t found a pirated edition of one of my works. Dammit, what happened to all the Cap’n Blackbeards and Morgans supposedly infesting the internet? By the time anybody works their way through all these web sites, they’ve been bombarded with what amounts to a blizzard of promotion concerning my work—not to mention a number of sites offering to sell them legitimate copies.

What’s a hardworking crook supposed to do?

Keep going, presumably. But I think we can satisfy ourselves from here on in with a quick summary.

What we find in sites 31 through 50 referring to “Eric Flint” are:

31: a reference to an upcoming appearance by me at an SF convention; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

32: another link to Webscriptions; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

33: a very positive review of 1632; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

34: a positive review of an essay of mine posted in Baen’s Library; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

35: a site where you can buy electronic editions of 1812: The Rivers of War and 1824: The Arkansas War ; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

36: a web page in Alibris where used copies of my books are available for sale; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.) They also sell my work, but since I don’t get any royalties from used book sales the net effect for me is simply promotional. Damn good promotion, though.

37: another very positive review of 1632; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

38: a link to the Grantville Gazette ; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

39: this is the second site that refers to a different Eric Flint, so it’s irrelevant. (However, for the record, it’s perfectly legitimate. Not a pirated copy in sight anywhere.)

40: the site has a very positive assessment and analysis of the entire 1632 series; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

41: this is a legitimate site which distributes free copies in PDF format of some of my books available in the Baen Library. (Baen’s Library does not offer PDF as a format.) (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

42: this site refers people to the Baen Free Library; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

43: another bibliographic reference site, listing many of my works; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

44: another Wikipedia entry about me; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

45: this is the third site referring to an “Eric Flint” who is not, grumble, me. Still, it’s perfectly legitimate and not a site where pirated books can be found.

46: another bibliographic reference site, listing many of my works; (LEGITIMATE SITE. HELPS PROMOTE MY WORK.)

47: Random House’s web page where you can buy copies of 1812: The Rivers of War and 1824: The Arkansas War; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

48: a link to Grantville Gazette III, along with links to places selling the book; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

49: a link to a legitimate site selling electronic editions of my books; (LEGITIMATE SITE. SELLS MY BOOKS. HELPS PROMOTE MY WORK.)

50: this is a rather weird site whose logic I don’t understand—I can’t actually find me anywhere in it, despite the link to my name—but which seems perfectly legitimate. It’s certainly not a site where pirated books are being hawked.

****

All right, enough. The pirates seem to have made themselves scarce.

Here’s the summary. Out of the first fifty sites referring to “Eric Flint” in a Google search:

All 50 of them are legitimate.

47 of the 50 refer to me. (For the record, the three other Eric Flints are a musician, an athlete and a radioneurologist.)

45 of them, in one way or another, help promote my work.

15 of them—which is to say, 30% of the total—directly sell my books.

And…

Not one of them—that’s “not one” as in ZERO, folks—provides a pirated copy of anything of mine.

****

In my next essay, I’ll deal with the objections that some people will raise to my use of search engines as a way to test the proposition that online piracy is well-nigh ubiquitous. And I’ll show that they’re all spurious. But, for the moment, I want to end this essay with what, by now, should be the obvious and central point:

The mere fact, in and of itself, that pirated copies of books exist somewhere on the internet, does not lead to the conclusion that such illegal editions are “readily available.”

That depends. On what? Mostly, on how readily available you make legitimate copies—measured in terms of ease of search as well as price.

We just saw that, in my case, legitimate copies of my work are in fact readily available. All anyone has to do is use a search engine—I used Google but you’d get about the same results with any other—and they will immediately turn up dozens of sites where legitimate copies of my work can be obtained. Much of it for free, but even those copies made available for sale are usually priced no more than five dollars a copy.

And, on the other hand, they’ll have a hard time finding a pirated copy. That’s because they’ll have to struggle through a veritable online blizzard of sites referring to me and my work that are perfectly legitimate.

So what’s their time worth? When obtaining a legitimate copy costs $5.00 or less and takes almost no time at all?

The answer is that most people will be perfectly satisfied with the legitimate product. Most potentially paying customers, I should say. I’m not interested in people who might be using a search engine to find pirated copies because they never had any intention of buying a legitimate copy in the first place. To be sure, such people are annoying in the general scheme of things. But they are irrelevant to this discussion. A virtual theft is simply meaningless, in terms of the loss to an author or publisher’s income. Zero from zero is zero.

This is a key point, by the way. One of the sleazy logical tricks played by advocates of DRM is to assume that every illegal download of a copyrighted item represents a “lost sale.” But that’s just nonsense. It would only be true if one of two conditions applied:

 

1) The downloader would havebought a legitimate copy otherwise.

2) Because of the illegal download, a legitimate copy of the text is now missing and is therefore not available for sale to a paying customer.

 

The second condition is simply irrelevant to electronic texts. And to call the first proposition “highly dubious” is to put the matter gently.

In reality, in my experience, what most people are doing when they read or download free electronic texts—and this is true whether the texts are legitimately provided or pirated copies—is sampling an author’s work to see if they want to pursue the matter further. And, if they do, they’re most likely to go find a legitimate copy for sale, not to keep hunting for pirated copies.

PROVIDED, at least, that the publisher was smart enough to make such copies available at a reasonable cost and in an unencrypted format.

All right. That’s enough, I think, for this month’s essay. In the next issue, I’ll pick up where this leaves off.

 

 

Salvos Against Big Brother:

The Problem is Legal Scarcity, not Illegal Greed

 

I devoted most of my last essay to demonstrating, using myself as the example, that finding a pirated copy of an author’s work is not as easy as it seems, at least if you try to do so by using a search engine. Of course, I know perfectly well that DRM enthusiasts will accuse me of loading the question. They will insist that no “real” pirate—more precisely, user of pirate sites—would be naïve enough to try to find a pirated edition of an author’s work simply by the brute force method of using a search engine.

But, in reality, they’re the ones who are loading the question. There is, in fact, not a shred of evidence that most readers have any knowledge of the more sophisticated methods available for finding pirated e-books. And plenty of evidence to the contrary.

Granted, all the evidence—on both sides, mind you—is largely anecdotal. So far as I am aware, at least, no one has done a systematic study to determine what percentage of book readers has an extensive knowledge of what it takes to find pirated texts and download them, easily and quickly.

Still, the anecdotes are pretty overwhelming—and they almost all lean heavily toward one pole in the debate.

Mine.

You can cross-check me by doing a simple little experiment of your own. Just talk to every friend and relative you have who reads books on a regular basis. Ask them a couple of simple questions:

1) Do you look for and read or download pirated books?

2) Even if you don’t, do you know how to do it?

Some of you, who have a lot of friends and relatives who are heavily involved in one or another aspect of the computer industry, will discover that the answer to at least one of the two questions above is “yes.”

But most of you won’t. Most of you will discover exactly the same thing I did when I ran this experiment with friends and relatives.

The answer I got to the first question was “no,” in most cases, with a few people saying “only if the site is legitimate, like Gutenberg or the Baen Library.”

The answer I got to the second question was rather fascinating. A majority responded “yes”—but when I pressed them for the details, all but one of them got very vague. What it eventually came down to was one or another variation on “well, I figure if you use a search engine and look long enough…”

Which is exactly the point I made in my last essay. Sure—if you look long enough. But only a tiny percentage of people are going to do that, if a publisher or an author makes their books readily available in a user-friendly unencrypted format, and at a reasonable price.

The one person who gave me a clear, firm and positive “yes” to that question, was indeed able to tell me in excruciating detail how he would go about looking for pirated texts, using methods that were far more sophisticated than the brute force method of using a search engine. And don’t ask me for the details, because after the first few words his entire explanation went right over my head. I am computer-literate enough to make a good living working at a computer. But the fact is that, like most people who use computers, I am not particular interested in the hardware and software involved. I am simply interested in the result.

The point being that I don’t know how to steal one of my own books, without wasting a lot of time trying.

If you’re wondering, by the way, the same tech-capable friend responded “no” when I ask him if he actually used the method he described. The reason? “Why bother?” he said. “Most of what I want to read electronically I buy through Baen or Fictionwise. It’s unencrypted, cheap, legal, and it’s no hassle. So why would I screw around just to save a few bucks? It would still take me longer than buying a legal copy, the quality of the text is likely to be lousy—and my time is valuable.”

That will generally prove to be the case. As a rule—there are always exceptions, of course, but not many—people who are well-enough educated technically to be able to devise quick ways to obtain pirated books, are also making a good living and don’t need to fret over a few dollars. They are no more likely to get involved in downloading illegal books—provided they can get what they want in a legal manner —than they are to shoplift a ten or twenty dollar item from a walk-in store.

There’s a very important point here. Don’t ever believe anyone when they insist on either one of the following statements:

1) Someday, when the technology gets good enough, print-on-demand books will become the dominant form of book publishing.

2) Someday, when the technology gets good enough, pirated books will be as easy to find as legitimate books.

Both statement are blithering nonsense, patently untrue, and for exactly the same reason. Push comes to shove, they both defy the laws of thermodynamics. Adherents to these opinions believe in the equivalent of perpetual motion machines and free lunches that are actually free.

Here’s the cold, hard reality:

No matter how advanced the technology of printing becomes, it will never be possible to produce books-on-demand as cheaply as they can be produced in mass production runs. Why? Because of what’s called, in many industries including machining, the “set-up cost.”

It takes just as much time, labor and money for a publisher or a printer to set up a production run of one book as it does a production run of one hundred thousand books. (And note, by the way, that it doesn’t matter whether the set-up is being done by human or purely mechanical labor. Either way, it’s still set-up time and it’s still an expense.) That being the case, the cost of each book in either print run will favor the mass production run.

And, that being true, it follows that any time a publisher thinks a given book will sell a lot of copies—and it’s those books that sustain the entire industry to begin with—they will choose to do a mass production run. In short, print-on-demand will never becomes the dominant branch of the publishing industry. It will always remain a secondary branch. (Not an unimportant one, necessarily. POD has become a very valuable branch of publishing for any text that has a low volume of sales but which should still be kept available to the public.)

And now, here’s the cold, hard reality when it comes to pirated e-books:

No matter how advanced the technology of publishing and text distribution becomes, it will never be as cheap to produce and distribute a book illegally as it is to produce and distribute it legally. Nor, from the customer’s standpoint, will it ever become as easy to obtain an illegal copy as it is to obtain a legal one.

Whatever else it is, theft is also work. Crooks and thieves have to work like anybody else, if they want to make money. The difference is that, by the very nature of being illegal, the work that crooks do is typically very labor-intensive and very time-consuming and very expensive. Why? Well, if for no other reason, because they can’t take advantage of a multitude of labor-saving devices such as are developed for all legitimate industries.

A would-be jewelry thief, for instance, cannot go online and order an Acme Jewel Store Robber’s Kit from www.CrimePays.com . Nor, having robbed the jewelry store, can he find the best price available for stolen jewelry from fences in his area by looking in the yellow pages. Nor, if he decides to cut out the middleman and hawk the stolen jewelry himself, can he go around and plaster his neighborhood with signs inviting everyone to come to the stolen jewelry sale he’s holding in his yard come next Tuesday.

Crime, whatever else it may be, is also one of the crudest and most primitive forms of human labor. It has to be, by the very nature of being illegal.

The same applies to pirated books. A book pirate cannot use any of the following labor-saving devices:

—He cannot set up and maintain a stable web site where people can come, year after year, to get his product. He cannot, in other words, do what Amazon or Fictionwise or Baen Books does.

—To the contrary, he normally has to keep changing his web site. But doing that inevitably makes it far more difficult for his would-be customers to find him.

—Or, he might choose to try to distribute his pirated text by burying it inside a large and complex web site where his illegal stuff is at least partly disguised by legitimate users. But, again, that’s just another way of making things tough on his would-be customers.

This is the reason—I swear, this is not rocket science—that thieves always target items which are very high-value for the labor invested to steal them. It’s simply not worth their time and trouble otherwise.

To put it another way, pirates rob bullion ships. They don’t rob grain ships. (Unless they’re slavers whose target is the crew itself—but that simply illustrates the same point.)

There is only one proviso here. And that’s the clause I put in italics above: Provided they can get what they want in a legal manner.

Here is the truth, which the music recording industry has been trying to deny for years:

Almost all electronic piracy happens because the producers of a given copyrighted product adamantly refuse to give their customers what their customers want. To put it another way, what drives electronic piracy on a mass scale is never greed. The product—whether we’re talking about a CD, a DvD, or a book—simply isn’t that intrinsically valuable to begin with.

No, it’s always scarcity. That scarcity can be measured in several different ways: price, nature of the product, ease of acquiring the product, whatever. Often enough, all those ways combined.

The music recording industry has provided the world with a perfect illustration of the principle. What triggered the mass eruption of illegal music file sharing beginning some years ago?

Was the population suddenly infected with a greed virus that had been dormant previously?

No, obviously not. What happened was that when the time came that the technical means existed for customers being able to obtain what they really wanted, the music recording industry refused to provide it and insisted that their customers had to keep buying the product in a format that the industry found convenient. Naturally and inevitably, since the product desired was being kept legally scarce, people developed illegal ways of obtaining it.

To be specific, most music that people listen to are songs. And, as a rule, a song doesn’t last more than a few minutes. Probably not more than three minutes, on average.

So, once it became technically feasible, the music industry’s customers were no longer—understandably, and with good and legitimate reason—willing to pay $15 or $16 or even $18 to buy an entire CD, when all they really wanted from it was one or two songs.

If you measure this in cost-per-minute of entertainment, the music recording industry insisted that people had to be willing to spend as much as six dollars a MINUTE to enjoy their music.

So long as the technical means didn’t exist to enable people to get around this industry-created obstacle, their customers lived with it. Although, be it noted, there was always a lot of “piracy” going on, and for many years prior to the advent of the digital era. It was quite common for people to record from a vinyl disk or a CD onto a tape deck, for instance. And, somehow, the music industry didn’t go bankrupt.

But, inevitably, once the digital era spread widely enough, the music recording industry found itself overwhelmed by what amount to digital poaching.

I have absolutely no sympathy for them. They are nothing but monopolist gougers who got exactly what they deserved. At any time, with their resources, they could have easily provided their customers with what their customers wanted—and made a profit in the process. They could have easily done what Napster did, to name just one example.

Instead—following their long-standing customs and habits—the music recording industry relied on their lawyers and their stooges in Congress. They got ever-more-Draconian legislation passed, and began filing thousands of lawsuits using these new laws.

Many of these lawsuits were bogus. There have been any number of documented instances where the music recording industry sued the wrong people, and…

Suffered no penalty at all. Once in a while, some particularly stubborn victim eventually—it always takes years—manages to get the industry to pay for their legal costs.

But that’s it. No punitive damages of any kind have ever been leveled against this rapacious industry—which is a truly piratical one—despite the fact that their strategy amounts to nothing more than a legal form of extortion. What they do, in essence, is charge someone with illegal downloading and demand thousands of dollars in money or they’ll take them to court—knowing full well that very few people are in position to fight a long and protracted legal battle, even if the charges are false.

When gangsters do this, it’s called the protection racket. When the Recording Industry Association of America does it, it’s called the Digital Millennium Copyright Act

How sweet it is, to be a Friend of Congress.

Yet, despite these Draconian new laws and the supine and servile attitude of the nation’s legislators toward the music recording industry, the RIAA still hasn’t been able to stem the tide.

And no wonder. George Santayana’s famous dictum “Those who cannot remember the past, are condemned to repeat it” is borne out once again.

The fact that the majority of young people today take downloading pirated music and file-sharing for granted has nothing to do with either their age or electronics. It is simply a current manifestation of that ancient human behavior known as poaching or smuggling—which always assumes massive proportions whenever an elite class of people is able to get the laws twisted in their favor.

It’s enough to point out that, over a century and a half ago, Macaulay predicted what would happen to the RIAA:

 

I will only say this, that if the measure before us should pass, and should produce one-tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers. At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…

Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.

 

Yes, I know I’ve quoted this before. It cannot be quoted too often.

But the publishing industry, thankfully, is still a long way from this situation. It has still—not yet—crossed the social Rubicon that the RIAA crossed many years ago. That Rubicon, of course, being the point at which the public’s perception of a given industry changes from “legitimate folks” to “bunch of greedy gouging bums.”

Cross that Rubicon and, just as Macaulay predicted, you will find yourself engaged in what amounts to guerrilla warfare with the entire population—or, at least, that segment of it which used to be your customer base. And once you let that genie out of the bottle, you will have a very hard time ever getting it back in again.

The publishing industry has been tagging along behind the music recording and movie industries, when it comes to this issue. But “tagging along” is the right way to put it. Publishers haven’t been leading the charge and, with a few exceptions, have generally kept a low profile in the debate. Probably the best known and most notorious of those exceptions was the absurd attack on libraries for supposedly aiding and abetting online piracy that was launched a few years ago by Patricia Schroeder, the president and CEO of the Association of American Publishers. But that affair didn’t begin to get the publicity that the RIAA’s mass lawsuits have gotten, and it never came to anything anyway.

There have even been some hopeful signs, in the last few years, that at least some publishers are pulling back from the precipice and are deciding not to go over the cliff with the RIAA.

Why has publishing not gone along full-heartedly with the music recording industry?

Well, there are several reasons, I think. The first and possibly the most important is that the standard format for the standard product of the publishing industry doesn’t grate customers the same way the equivalent product of the music recording industry does.

Put simply, the music recording industry sells songs that take three minutes to listen to, and the publishing industry sells books that take a minimum of three hours to read (and usually longer).

That’s a big difference. Even when an e-book is encrypted and over-priced, the book buyer is not being subjected to the same six-dollar-a-minute sheer gouging that they are from the music recording industry.

An aside, here. I’ve never seen a study of this aspect of the problem of music file-sharing, but I’m willing to bet that if a study were made it would discover that there is comparatively little in the way of illegal file-sharing when it comes to classical music. The reason, of course, is that classical music (along with some jazz and some international music) is the one major branch of music whose output is not primarily short songs. The typical classical music CD will contain something like a symphony or a string quartet or a violin concerto—i.e., a piece of music that lasts perhaps half an hour or longer. So, customers who spend $18 for such a CD don’t feel that they’ve been particularly gouged, as does someone who spends $18 just to listen to one three-minute cut on the album.

The second reason, I suspect, is that there is still a much bigger disparity between legal and illegal versions of the same product, when it comes to books compared to music. So I’ve been told, anyway. I’ve never downloaded music, myself, legally or otherwise. But I’ve been told by people who have—legally and otherwise—that the quality of the downloaded product is not usually noticeably different from a version obtained legally.

With books, that’s usually not true. Most pirated texts display significantly greater degradation than do the texts of legitimately produced books. That’s because most pirated texts are obtained by OCR scanning, and OCR scanning is very far from perfect. A scanned text like that has to be proof-read carefully—and proof-reading takes hours and is one of those skills that it is very hard to computerize. In fact, it’s impossible, at least so far.

Typically, a book pirate isn’t willing to put the time and effort into proof-reading, because they are rarely if ever making any money from their illegal actions. Most book piracy today is done by people who get some sort of weird thrill out of it. Super-annuated juvenile delinquents, who think information wanna be fwee as if electrons are marching around holding up placards and demanding their rights. Their behavior is the online equivalent of spray-painting gang logos on garage doors.

Whatever the reasons might be, however, the fact remains. The publishing industry has not yet gone over the DMCA cliff the way the music recording industry has. It’s not even—yet, anyway—perched at the brink.

So, there’s still time to save the critter before it allows itself to be stampeded over the cliff.

Starting with my next essay, I’ll take up the problems and opportunities of the electronic era in publishing from what you might call a positive standpoint, instead of the negative one I’ve been generally taking thus far. By “negative,” simply meaning that I’ve spent most of my time countering the arguments in favor of DRM.

Now let’s move on. Let’s see how authors and publishers can take advantage of the digital era, instead of being scared to death by it.

 

 

Salvos Against Big Brother:

Foam and Froth and Mighty (Upside-down) Pyramids

 

 

Beginning with this essay, I want to start looking at the question of DRM and modern copyright laws from a different standpoint than I’ve taken so far. I want to examine the new digital era in terms of how authors and publishers can take advantage of it. Had the music recording and movie industries done this years ago, instead of panicking themselves over the dangers of the digital era, we’d all be in a lot better shape—and we’d have a lot fewer bad laws on the books.

I need to start, however, by debunking some myths. Myths which, no matter how wrong-headed and patently foolish, are widely held.

How widely? Widely enough that Time magazine, in its recent commemorative issue on the inauguration of the new U.S. President, Barack Obama—the issue was dated February 2, 2009—ran a major article on the subject of publishing in the electronic era. The author of the article was Lev Grossman, and the title was “Books Unbound.”

It’s a long article, and quite fascinating. It’s been years since I can recall reading anything that managed to combine as much in the way of error and misinformation, and then present it wrapped with such illogical reasoning.

So let’s go through it, step by step. Polemics can often be the best way to make some points.

Grossman begins by recounting the story of a health-care industry consultant named Lisa Genova who’d written a novel but couldn’t find an agent and couldn’t find an editor interested in the book. So, finally, she self-published in 2007 by paying a company to produce the book. This, of course, is the familiar route whereby would-be authors use a so-called “vanity press” to get themselves in print.

Nowadays, it’s claimed by some that “self-publishing”—even when you pay a company to do the printing and much of the actual publishing work—is not the same thing as a vanity press. Maybe it is, maybe it isn’t. I’m not honestly interested in the distinction because it doesn’t matter. As it happens, I don’t myself have any particular bias against self-publishing. I considered it once myself, in the years before I’d gotten anything published, and while I decided against it my reasons were entirely practical. It’s a very ineffective way to get published, that’s all—with some exceptions, which I’ll discuss below.

But Grossman claims it worked for the novelist, Lisa Genova, in this instance. According to the article:

“That was in 2007. By 2008 people were reading Still Alice. Not a lot of people, but a few, and those few were liking it. Genova wound up getting an agent after all—and an offer from Simon & Schuster of just over half a million dollars. Borders and Target chose it for their book clubs. Barnes & Noble made it a Discover pick. On Jan. 25, Still Alice will make its debut on the New York Times best-seller list at No. 5.”

The logic involved is mind-boggling—an example of the error of post hoc ergo propter hoc that is cruder than most.

For those of you who’ve forgotten my earlier column on the subject, the Latin phrase post hoc ergo propter hoc means “after which, therefore because of which.” It’s the logical fallacy of presuming that because Event B occurred after Event A, then Event B must have been caused by Event A.

In this instance, the logical gap is obvious, and it falls between the sentence than ends “…and those few were liking it” and the next sentence, which starts “Genova wound up getting an agent after all…”

I don’t know how Genova wound up getting an agent, nor how that agent manage to persuade a major publishing house to pony up a half million dollar advance for a first novel. If you’re wondering, by the way: no, that isn’t common. It’s about as rare as the proverbial hen’s teeth. The average advance for a new novel is between $3000 and $7000—and few of them earn enough to repay the advance.

Here’s what I do know. However this all happened, the fact that Genova self-published the book had absolutely nothing to do with her later success. In fact, it would have been an obstacle for her agent and something that the editor who got enthused about the book would have had to explain away to her or his boss in the publishing house. Self-publishing—whether or not it’s considered the same as a vanity press—is not an asset for an author.

The reasons should be obvious. First, because it always carries at least the implication that the author couldn’t find a commercial publisher—presumably because the author isn’t very good. And, secondly, because no publisher likes to pay a lot of money to publish a book which is at least technically a reissue, rather than a new title.

What I suspect happened was simply that Genova got somehow hooked up with this agent, and the agent took it from there. Mind you, it’s quite possible that she handed the agent a copy of the self-published novel, since it existed, and that’s how the agent first read it. But she could just as easily have handed her agent a manuscript and gotten the same result.

The point is that there is no connection between those two events—and Grossman could have easily determined that by a simple reversal of the question. To wit:

Lots of books get published every year through self-publishing and vanity presses. I don’t know the exact number, but it’s lots and lots.

How many of them wind up #5 on the New York Times bestseller?

Uh… Maybe one every five years, if that often. Yet meantime, week after week after week—the list is run on a weekly basis—other titles that were not self-published make it to #5 on that list. Not to mention Numbers One, Two, Three and Four.

For that matter, how many self-published or vanity press titles ever get picked up later by a commercial publisher, regardless of the size of the advance and regardless of whether the title makes the NYT list? That does happen, but it happens very rarely. At least 99.9% of all self-published and vanity press titles never go anywhere beyond the tiny circulation that is typical of such titles.

Grossman’s argument, logically speaking, is no different from someone writing a gushy article that relates the story of how Person A won the state lottery—which, by the by, happens more often than an unpublished author gets an advance of $500,000 from a publishing house—and giving the reader the impression that…

Winning the state lottery is the new way everyone will make a living!

To be blunt about it, Grossman is being dishonest by opening his essay with this anecdote. Clearly, the purpose of the anecdote is to lay the basis for the rest of his long article, which is devoting to arguing that publishing is on the verge of a profound sea change and that authors will no longer earn their living by making royalties. But how can a lively anecdote about a tiny fraction of human experience in publishing possibly provide a basis for that argument?

Answer: it can’t. But, gee, isn’t it a nifty anecdote? So let’s just charge ahead as if we’d established anything.

Basically, his article repeats all the fallacies of pro-DRM advocates, but from the opposite standpoint. Grossman agrees with the most extreme pro-DRM advocates that the digital era poses a mortal threat to copyright. The difference is simply that it’s implied that he thinks that’s to the best, and he states explicitly that it is inevitable and that the publishing industry might as well get used to it.

Let us now proceed through his reasoning, such as it is, step by step. But remember that he begins it all with a patent piece of duplicity: That because Author X made it big by self-publishing, that represents the wave of the future.

Following the Genova anecdote, Grossman gives a capsule history of the novel. His main point here is that the existence of the novel in its modern form is relatively recent in human history, dating back no earlier than the early 18 th century. He’s wrong about that, too, by the way. The modern novel began in the 17 th century with such titles as Cervantes’ Don Quixote , and you can find plenty of examples of similarly long tales still earlier than that. Rabelais’ famous stories Gargantua and Pantagruel were published in the 16 th century.

For that matter, the human race has always doted on long and complicated stories. That’s been true for millennia, and is exemplified in such things as the Bible—which, in literary terms, is a complex and multi-authored work far longer than any commercial novel—and the Hindu epic, the Mahabharata , which is probably the longest single story ever told and makes Tolstoy’s War and Peace look like a short afternoon’s tale.

Still, there’s a kernel of truth in Grossman’s claim. It is true that the advent of the modern novel “happened as a result of an unprecedented configuration of financial and technical circumstances.” Specifically:

The invention of the printing press—which happened two and a half centuries earlier, remember—made it possible to produce a lot of relatively cheap copies of a single work.

The rise of capitalism and modern commodity production meant that you had a well-developed marketing network.

The same profound economic and social forces were beginning to produce a large so-called “middle class” which was generally both urban and literate.

Finally, the adoption of modern copyright laws—the first of which in the English-speaking world was the Statute of Anne in 1709—gave authors an established legal framework within which they could make a living plying their trade.

All this is true enough. It’s what comes next that causes the problem, because—once again—Grossman is about to take one of his flying leaps in logic.

Here’s the next sentence in the essay:

“Fast forward to the early 21 st century: the publishing industry is in distress.”

He then proceeds with a long paragraph listing various and sundry problems besetting the industry. This publisher laying off editors and other staff, that publisher undergoing a drastic reorganization, salaries frozen in many publishing houses, and so on and so forth.

Once again, we see the Grossman Method of Logic. Relate an anecdote or collection of anecdotes and then sally forward, breezily assuming that you’ve proven or demonstrated anything by the anecdote.

But, again, this is all balderdash.

It is indeed true that, right now, the publishing industry is having more than its usual share of woes. And…

This proves or demonstrates what, exactly?

Absolutely nothing.

Let’s start with the plight of the hapless editors, who find themselves out of a job. For Pete’s sake, the publishing industry has always been notorious for firing editors. If you don’t believe me, ask any editor. Publishing is one of those few industries which has the great advantage of being somewhat glamorous. It therefore attracts a lot of would-be editors mostly because they really like literature and think (often correctly, by the way) that they would enjoy a career in publishing for that reason. And they’re willing to put up with a lot in order to get that benefit—a lot more than they’d put up with, if they were employed as washing machine salesmen.

Trust me on this one, I know a lot of editors. If you get any editor to talk to you over a few beers, they will all tell you that the industry pays lousy and that the stability of employment is usually just as bad as the salaries. And honest publishers—many of whom began as editors themselves—will tell you exactly the same thing.

And it’s always been that way. It was that way a hundred years ago, and it was that way two hundred years ago. To paraphrase Dr. Johnson, nobody but a blockhead ever undertook to make a lot of money in publishing. It is and always has been a relatively low-profit and chancy industry.

Nor is there anything new about publishing houses being “in the midst of a drastic reorganization.” From the standpoint of the news—or any relevance to Grossman’s argument—he might as well have stated that there was fog in London and sunny weather in San Diego. Gee, no kidding.

But there’s a method to Grossman’s madness. Having, once again, established an irrelevant fact, he charges on. He proceeds to recount the basic features of the publishing industry, and—this is perhaps the only useful part of his article—dismisses along the way several other myths.

He notes, in particular, that the hoary chestnut that publishing is in trouble because people today don’t read due to electronic distractions is blithering nonsense. He points out, for instance, that literary reading by adults has actually increased over the past few years. (And although he doesn’t mention it, reading by teenagers had also increased.)

But we can smell trouble coming by the time he spends dwelling on what he considers the very peculiar features of the industry. He singles out two in particular:

First, he spends time explaining the system whereby authors get mostly paid by advances against royalties—which (he somewhat breathlessly reports) don’t have to get paid back by the authors if the book doesn’t sell well.

Is he right about this? Yup, he sure is. Most authors never see any royalty payments because most books never “earn out”—to use the industry expression—the advance that was originally paid for them. And although you can look at advances as loans advanced against eventual royalties, they have the peculiar features that the loans have no interest and don’t have to be paid back if the royalties don’t cover them.

Yes, yes, yes, it’s all true—and it’s all completely irrelevant to Grossman’s argument.

Why? Two reasons:

First, it’s been true for decades, probably centuries. So what difference does it make now?

Secondly, there’s a big fudge involved, and it goes back to the distinctions between authors which I made very early in this series of essays. (You can find the discussion in my columns for the third essay, published in the October 2006 issue of this magazine.)

Yes, it is true that “most” authors never earn royalties. But there is a big difference between “most authors” and “most books sold.” The great majority of books sold are written by a relatively small number of writers—usually called “lead writers” in the industry—and those writers typically do earn royalties.

I will use myself as an example, since I know my situation the best. I am today a very well-established lead writer in the large genre called “science fiction and fantasy.” I just recently published my thirtieth novel.

Thirty novels, all of them still in print—and well over ninety percent of which have earned out their advance and are paying me royalties. And the few which haven’t earned out still have a good chance of doing so, by the way. They’ll certainly come very close to earning out.

Is that unusual for lead writers? No, not particularly, except for the fact that all my books are still in print. That is a bit unusual, and is explained by the fact that almost all of my books are published through Baen Books, which is an independent publishing house and keeps its titles in print longer than a big corporate house typically will.

In short, once again, Grossman has advanced an observation which, while true enough in its own terms, has no relevance to his argument. Yes, advances are an unusual way for an industry to pay for its most critical labor. But, first, there are good reasons for doing so, that are relevant to the specific nature of the industry. It’s worth noting that the entertainment industries in general very often have unusual ways of paying for their most critical labor. Boxers, for instance, work for prize money. No one proposes to substitute prize money for regular wages in the steel industry, however—and the boxing industry has somehow managed to stay afloat for several centuries nevertheless.

Secondly, the advances system creates no great burden for the industry since the big majority of the really critical labor does earn out the advances.

As is demonstrated, third, by the simple fact that things have been chugging along this way for a very long time now.

Grossman then goes on to examine the peculiar and complicated way in which the industry sells its product. Publishing is one of the few major industries that works primarily on a consignment basis. If books go unsold, the retailers can return the books to the publisher, and it is the publisher and not the retailer who absorbs the loss.

I could easily spend an essay (or two or three) on the stupidities of the consignment system which has dominated publishing since the publishing industry was foolish enough to institute the system back in the Great Depression.

It’s an asinine system, in my opinion, sure enough. I have no quarrel with Grossman on that subject.

But… but…

The operative clause in terms of this argument is “back in the Great Depression.” For Pete’s sake, whether right or wrong or somewhere in between, the consignment system as the basic model for book distribution has now been in existence for three-quarters of a century. Most of you reading this essay hadn’t been born yet, and those few of you who had been born were probably too young to remember it anyway.

So what does any of this have to do with the supposed transformation in the publishing industry that Grossman claims is caused by the digital era? The consignment system had been in existence for at least a decade before ENIAC fired up its 17,468 vacuum tubes to become the world’s first Turing-complete digital computer. Whatever its problems may be, if they were really that big a deal they would presumably have torpedoed the industry long ago.

An aside here. The reason I detest the consignment system has little do with the overall economics of the publishing industry. From the standpoint of publishing as a whole, it’s really no big deal. It simply means that they have to build into their price structure the fact that they have to print about twice as many books as they will actually sell. (What happens, in effect, is that when you pay eight dollars for a paperback in a bookstore, you’re actually buying two books—the one you’re taking home with you, and the extra copy of the same book that is going to get pulped to keep the whole circulation stream going.)

Well, they did that a long time ago, and things have been chugging along well enough since.

No, the real problem with the consignment system from my standpoint is that, combined with the major changes in the distribution industry over the past two decades or so, it tends to make bookstores stupid. “Stupid” in the functioning sense that since they don’t take most of the risks of bad decisions they make but can pass them onto the publishers, they make a lot of bad mistakes. What’s probably more important, to me at least, is that they are also incredibly careless.

What I mean by that is this: Because of the sloppiness of the consignment system, major chain bookstores typically spend little time and effort (much less money) keeping careful track of all their titles. Instead, they concentrate almost entirely on the few big blockbuster titles—which is where they make most of their profits—and tend to ignore everything else.

But “everything else” means well over 99% of their titles. If any other retailer was as careless with most of their inventory as bookstores are, they’d go out of business pretty quickly. But bookstores don’t care that much, because most of the burden for their screw-ups winds up getting borne by the publishers thanks to the consignment system.

For all authors except the tiny number of top-selling ones, that means the system is a burden on them also. For those authors—and I’m one of them—it means that not only is their livelihood completely dependent on the market but, in this instance, it’s a market that has the brains of a moron.

Again, trust me on this one. I don’t know any successful author who hasn’t gritted his or her teeth when they see the way that bookstores so often are obviously paying no attention to sales. There will be one or even no copies of a book of theirs which is actually selling quite well, right next to multiple copies of a title by some other author that they know isn’t selling well at all.

What’s far worse is the plight of new and midlist authors, whose novels can have excellent sell-through but will never earn out their advances because the bookstores don’t order enough copies. They presumably would order more copies if they started paying attention to their whole inventory, and began noticing that some titles by new authors have a sell-through of 70% or 80%, which is well above average. But… they just don’t bother. If those lost sales were costing the bookstores money, they’d start paying attention to the problem. But they don’t, so they just shrug it off.

And that, in a (very abbreviated) nutshell, is why I dislike the consignment system. But please note that this has absolutely nothing to do with what Grossman is prattling on about.

The purpose of all this prattle—we’re about to see another Grossman Leap of Logic—is to give the impression that (somehow or other) he has laid the basis for the next stage in his argument. Which begins as follows:

“If you think about it, shipping physical books back and forth across the country is starting to seem pretty 20 th century.”

Well… yeah, I suppose. But why stop there? Centuries do not succeed one another like so many discrete and separate stones. Actually, they don’t really even exist except by arbitrary human custom. One year passes into another, that’s all. The difference between 1999 and 2000 (or 2000 and 2001 if you’re a purist about these things) was really no greater than it was between 1998 and 1999, or 2001 and 2002.

For Pete’s sake, lots of things—most things, in fact—are still “pretty 20th century.”

The way we build roads… yup, still pretty 20 th century. But the roads work, don’t they?

The way we make steel… yup, still pretty 20 th century. But the alloy still serves its functions, doesn’t it?

Should I go on? Should I slaughter untold innocent electrons with an endless list of all the things still being done and produced today that are “pretty 20 th century”? But that still work just fine and are causing no problems at all.

Once again, Grossman’s method of argumentation is to establish an irrelevant truth (or sometimes, semi-truth) and then press on as if he’d demonstrated or established anything significant.

Sure enough, the very next sentence is:

“Novels are getting restless, shrugging off their expensive papery husks and transmigrating digitally into other forms.”

Aha! Finally! After all this blather, we get to the real nitty-gritty. Just like all the extreme pro-DRM advocates, Grossman thinks we’ve really entered into a completely new world of publishing.

But it’s all baloney. As I’ve established in earlier columns, it is simply prattle to claim that publishing is rapidly moving from a paper to an electronic format.

No, sorry, it ain’t. The overwhelming majority of books written, sold and read are still produced on paper—and while electronic reading is growing, it is growing slowly. (Outside of a few specialty areas, like encyclopedia publishing.)

Just as—to go back to the first Grossman myth—the overwhelming majority of authors still get started the old-fashioned way, by submitting a manuscript to a commercial publisher. The number of successful authors who got started by self-publishing or using a vanity press is miniscule.

Another aside here. I said early in this essay that there were some exceptions to the general rule that self-publishing is impractical. So I should probably explain them now.

The exception comes with certain types of non-fiction books. The big problem with self-publishing isn’t actually the publishing part of it. Nowadays, with modern computers and printing methods, that’s pretty easy and not even very expensive.

No, the real problem comes with distribution. The standard story for self-publishers—which happens at least a thousand times for every Lisa Genova story—is that they wind up with a garage or basement full of their (unsold) books. Major distributors will not take them, because such titles generally sell like crap. And without the resources of a major publisher, the author is reduced to physically hauling the books around personally and trying to sell them or get a bookstore to take them on consignment. This gets counter-productive very quickly, it should be obvious.

The problem is that, with most books and almost all fiction, it’s simply very difficult to target the audience. But that’s not necessarily true with non-fiction titles, especially ones that have a tight focus. To give an example I know about personally, many years ago a friend of my mother self-published a book on a specific aspect of psychiatric care. She distributed the book herself and sold several thousand copies of it—which matches the level of sales of most commercially-produced books, even in numbers, and was far more successful for her financially since she got to keep all the money instead of only the small portion (somewhere between eight and fifteen percent) that authors get from commercial publishers.

The reason she could do so, however, was because:

First, the book focused on a very specific subject.

Second, she was a well-established and well-known expert on the subject among psychiatric social workers and nurses in psychiatric institutions.

Third, she sold the book at conventions frequented by other such professionals in her field, which provided her with an already assembled perfect target audience.

So, in this instance, self-publishing worked. But none of those conditions, much less all three of them, is likely to exist when it comes to a novel.

Like any “rule of publishing,” you can find occasional exceptions to these nostrums. But that’s what they—rare exceptions. They are certainly not the rule, and they cannot be used the way Grossman tries to use them, as props to support the most rickety logical structure imaginable.

But he keeps doing it. Having established, to his satisfaction if not the satisfaction of reality, that paper books are “pretty 20 th century,” he charges on yet again. Now he claims that the wave of the future is electronic books read on cell phones and—

—wait for it—

Fan fiction!

Yup, fan fiction. With logical methods unsurpassed since Alice fell into the rabbit hole, Grossman has gone from the anecdote about Lisa Genova and her self-published success to the notion that the future of publishing will be…

Oh, I just can’t summarize his prose. It really needs to speak for itself. I’m trimming some of the text to keep it from keeping too long-winded. It’s impossible to keep it from being windy, of course, since it’s all hot air:

“So if the economic and technological changes of the 18 th century gave rise to the modern novel, what’s the 21 st century giving us?… From a modern capitalist marketplace, we’ve moved to a postmodern, postcapitalist bazaar where money is increasingly optional… Put these pieces together, and the picture begins to resolve itself: more books, written and read by more people, often for little or no money, circulating in a wild variety of forms, both physical and electronic, far outside the charmed circle of New York City’s entrenched publishing culture. Old Publishing is stately, quality-controlled and relatively expensive. New Publishing is cheap, promiscuous and unconstrained by paper, money or institutional taste… [Old Publishing] will live on in a radically altered, symbiotic form as the small, pointy peak of a mighty pyramid… The wide bottom of the pyramid will consist of a vast foamy layer of free, unedited, Web-only fiction, rated and ranked YouTube style by the anonymous reading masses.

“And what will fiction look like? Like fan fiction, it will be ravenously referential and intertextual in ways that will strain copyright law to the breaking point.”

Oh, my. What you see above is just another version of the Great Nightmare of all pro-DRM advocates—but in the form of a wet dream.

And that’s what it is. A wet dream. Pure, unadulterated balderdash. Reality turned on its head—and quite literally. A so-called “mighty pyramid” in which not only all the money but almost all the readers will reside in the “small, pointy peak,” while the supposedly “wide bottom” will indeed be foamy. That is to say, mostly froth and looking way, way bigger than it actually is.

Has common sense been outlawed? Ask yourself how much of your reading consists of wading through unedited and self-selected fan fiction that you read on a cell phone? (Or read anywhere else, for that matter.)

One percent? Most likely, no percent. Ask anyone you know who reads a lot. The answer will be the same.

Nobody with any experience in real world publishing, whether as an author or an editor or a publisher—or a reader—will recognize the picture that Grossman is painting. It’s completely surreal. It has literally no connection to the real world.

I don’t think Grossman realizes it, but the logic of his argument is that traditional commercial publishing has survived—even prospered—for at least three centuries by perpetrating an enormous fraud on the world. Because, it turns out—such is the wisdom of Grossman, anyway—that the following things are true:

First, there is no distinction between good authors, mediocre authors and bad authors except blind luck in the market.

Second, the vast reading public is made up almost entirely of imbeciles who will cheerfully spend many hours—but no money!—reading drivel.

Third, “Old Publishing” is a pack of swindlers who have stayed afloat for three hundred years by convincing the reading public that there really is a difference between good writing (or even just competent writing) and bad writing, and that they perform a valuable function in separating the wheat from the chaff.

But now we learn the truth. There is no wheat and there is no chaff. There is only the foam.

Where to start? Readers who’ve been following this column from its inception will of course recognize that I’ve already demolished most of these notions. True, the notions were advanced in the form of alarmist fears, not Grossman’s triumphalism. But they’re the same notions.

But enough’s enough. I spent this essay examining Grossman’s article in Time magazine simply to establish that the mythology concerning the “modern digital era” is very widely spread. What I want to do now, starting in the next essay, is approach the problem from the standpoint of a commercial author who has—in the real world, and not Grossman’s world of foam and froth—used the techniques of the digital era very successfully. And, perhaps ironically, done many of the same things in practice that Grossman fantasizes about, but did them successfully because I do not share any of his misperceptions.

To give an example, so far as I know I am the only fiction author today—in any genre—who has successfully incorporated so-called “fan fiction” into a series whose novels regularly appear on the New York Times bestseller list. What Grossman prattles about, I have done.

But I certainly didn’t do it his way, which is nonsensical. I did it by recognizing that publishing is still and will continue to be dominated by what he calls “Old Publishing,” but that the digital era does provide authors (as well as publishers) with a number of valuable new methods and avenues for practicing their ancient craft.

We’ll get into that in my essay for the next issue of the magazine.

 

 

Salvos Against Big Brother:

The Internet is Not a Magic Wand

 

 

I want to start this essay, which continues my discussion of electronic publishing and online promotion, by debunking some myths. And of the many myths about promoting published works, the biggest myth is the myth of “promotion” itself. I’ll repeat the key points I made in a column published many months ago:

 

The most common form of promotion that science fiction and fantasy authors undertake is to attend science fiction conventions, of which there are hundreds in the United States every year. In some instances, they are invited to be the Guest of Honor or the Toastmaster for a convention, in which case the convention pays the cost of their travel and lodging. But, in most cases, the authors are paying for it themselves. And even if the convention is picking up the tab, the author is still losing valuable work time.

Figure out the math. Assume the cost of the round-trip travel averages $400 and the cost of the hotel room is another $200 for a weekend. Toss in $100 for food and incidental expenses.

That’s seven hundred dollars. To make back that financial loss—remember my royalty figures in the fifth essay?—the author would have to sell a minimum of one hundred and eighty-seven books, over and above what they’d sell without that promotional trip. And that’s assuming that he or she gets published in hardcover, and it also assumes that their hardcover sales typically exceed ten thousand copies per title, so they’re getting the top 15% royalty rate.

In point of fact, neither assumption applies to most authors. For a new or midlist writer who is only getting published in paperback, where the royalties are eight percent of the cover price—i.e., sixty-four cents per copy sold, accruing to the author, assuming the standard modern paperback price of eight dollars—they would have to sell over a thousand additional copies of a book just to break even on that one promotional effort.

 

The fact of the matter—the cold, hard, cruel fact of the matter—is that 99% of the promotion that well over 99% of all books will ever get is simply being printed, shipped and displayed on the shelves of bookstores. To put it another way, it’s not “promotion” at all, in the sense of a special effort. It’s simply a byproduct of the routine process of manufacturing and selling books.

Tom Doherty, the founder of TOR Books and probably the most respected currently active publisher in the science fiction and fantasy genre, has a very pithy way of putting it:

Every book is a billboard.

This is a good part of the reason that, like most professionals in the field of publishing, Tom doesn’t get too worked up over the clumsiness—even the silliness—of the consignment system of publishing books. True, about half of all books printed will wind up being destroyed. But if you look at those books as simply the equivalent of advertising material, the situation doesn’t look as bad.

(I’m not quite as blasé as Tom is on the subject, because I think the quirks of the consignment system hurt individual authors more than they do publishers. That said, I’m admittedly not losing much sleep over the issue myself.)

This feature of publishing, incidentally, is one of the real drawbacks of electronic publishing. Yes, it’s certainly true that electronic publishing eliminates most of the (huge) distribution cost of traditional paper publishing. But the flip of that same coin is that electronic publishing loses all the benefits, as well. There is no online equivalent of the automatic promotion that a paper book gets simply from being printed and distributed in the first place.

Books on the shelves of a bookstore are very visible; web sites are all but invisible. The same obstacles there are to building a bookstore—that’s a lot of bricks and mortar, and the labor to use them, with corresponding costs—also means there are relatively few of them. So, people interested in buying paper books are drawn willy-nilly to a small number of places where most of the goods are displayed for sale.

Nothing equivalent happens in electronic publishing. Unlike brick-and-mortar bookstores, web sites cost peanuts to build. That means there are literally millions of them. Granted, relatively few of those sites are in the business of selling books. (Or pirating them, I might add.) But they still tend to get lost in the blizzard of web sites on the internet.

True, there are some very well-known bookselling sites, Amazon.com being the most prominent. But even when prospective buyers do find their way to such an internet site selling published material, it’s a lot slower process to browse through the available goods than it is in a bookstore. Slowly walking down the aisles of a bookstore and scanning the shelves to see if there is anything of interest is a lot faster and more efficient than trying to examine the same number of titles in Amazon’s web site.

If you don’t believe me, try the experiment sometime. Shopping online is immensely convenient in terms of travel. However, once you get there—assuming the item you’re interested in is something like a book, of which there are hundreds of thousands of “models” available—then it is typically far more efficient to find what you’re looking for in a molecular shop than in an electronic one.

There’s a point that all this is leading to, which is this:

Don’t expect miracles from the internet when it comes to promotion. Whatever else it is, the internet is not a magic wand.

Why? Because you’ll find that you encounter the same quandary I refer to above. Yes, online promotion is generally a lot cheaper than traditional promotion. It’s also a lot less visible—which means, as absurd as it may seem, that you wind up having to spend time and/or money to promote your own promotional effort.

This becomes a mug’s game, very rapidly. Here, as is almost invariably true when it comes to the issues I’ve covered in these essays, we find that the future is one that combines traditional and electronic measures. It is not a future that is exclusively one or the other.

Speaking as an author, I’ve found that the general rule of thumb when it comes to online promotion is an adage that goes back at least a century and a half:

It takes money to make money.

A more sedate way of putting that is that you have to have an initial capital investment before you can hope to increase that investment.

Translated into the terms of our discussion, what this means is that the value of using the internet for promotion—certainly in publishing—is heavily dependent on starting with something. If you are already an established author, then there are many ways you can use the internet to promote yourself—ways that are usually cheaper in terms of money and far more efficient in terms of labor than the traditional methods of authorial self-promotion. (Book-signings, attending conventions, printing and distributing bookmarks and flyers, etc.)

But there’s nothing magic about the process. The mistake made by far too many people is the delusion that the internet provides them with some sort of magic wand with which they can wave aside the longstanding obstacles to becoming an established author in the first place.

I’ve attended a lot of science fiction conventions over the years, and participated in (by now) hundreds of panel discussions at them. For whatever reason—probably the fact that I’ve been a publisher and an editor as well as an author, which is rather unusual—I often get placed on a panel whose topic of discussion is something like “how to get published.” Not surprisingly, a lot of people who attend SF conventions are aspiring authors themselves, and this topic is a perennial favorite for panel discussions.

It’s a somewhat depressing experience for me, because with few exceptions I know ahead of time what the panel will look like. Once in a while—oh, hallelujah—the panel consists of several well-established professional authors, of whom I am only one. Far more often, however, the panel consists of me and… Up to half a dozen people, each of whom has published something, but usually not more than a handful of titles and those almost invariably in very small and often obscure outlets.

To put it another way, the panel consists of one six hundred pound gorilla and half a dozen very small monkeys.

The monkeys, naturally, chatter away like mad, flooding the audience with advice and suggestions—

—almost all of which are blithering nonsense and some of which are downright damaging to whatever prospects one of the aspiring authors in the audience might have to develop a career in the field.

I am not the world’s kindliest person, but I’m not an ogre, either. I take no pleasure in hurting people’s feelings, and I always find myself walking on eggshells at these panel discussions. Somehow or other, I have to find a way to convey to the audience the fact that most of the advice they’re getting is wrong, without placing unnecessarily large bruises on the egos of my fellow panelists.

(This experience is by no means peculiar to me, by the way. Every established author I know who attends SF conventions has gone through it, if not usually as often as I have.)

By far the most common piece of drivel-passing-as-sage-advice is one or another variation on this message:

You really need to spend a lot of time and effort to promote yourself as a writer or you’ll get buried. And my sure-fire recipe for doing so is…

These recipes then follow. And while they vary considerably in detail, they all share the same basic ingredients.

Of these ingredients, there are three. The first is that the budding author needs to spend most of his or her time while working as an author doing promotional work. The second is that this will involve a lot of time and effort if they are to have any chance of success. To the point where they will apparently only be able to do any actual writing in dribs and drabs.

I suspect those two ingredients have been staples in these panel discussions since the first science fiction conventions were held back in the 1930s. The third ingredient to the recipe, however, is of fairly recent origin:

But the internet makes it all so much easier!

Oddly, the greater ease purportedly provided by the internet never seems to mean the budding author can spend any more time actually, you know, writing something. Instead, it is claimed, the internet gives all promotional efforts a tremendously multiplied effect.

How is this effect measured? Hell, don’t ask me. When I got started as an author, I spent almost all of my time writing. It seemed self-evident that since nobody had ever heard of me, nobody would be that interested in what little I could “promote,” either.

And that’s the advice I always wind up giving at these panel discussions. Here it is, stripped to the essentials:

“Spend no significant time or effort promoting your work, which is minimal to begin with. Instead, sit your ass down and write. As soon as you’ve written something, submit it to a professional publisher. While you’re waiting to hear the results, write something else. Yes, it’s a dreary business. Yes, it will get damn depressing. But it’s the way I got published and it’s the way almost all authors initially get published. And if it makes you feel any better, the one bright side to the whole dark and dismal process is that good writing is actually fairly rare. If you can genuinely write well, you will eventually get published—as long as you stick to it, and don’t let yourself get sidetracked by silly schemes like the ones being spouted by the other members of this panel.”

I try to find a polite way of saying the last sentence. But I’m very blunt about the rest of it.

I can afford to be, because I’m right and I know it. It helps to have as much editing experience as I have. (In addition to editing two magazines, I’ve have just about as many volumes published as an editor as I have as an author.)

Trust me. The one thought that never occurs to any editor as they contemplate a slush pile of stories submitted by unknown authors—has never occurred once, in the centuries-long history of print publishing—is this one:

Oh, gosh, it’s going to be so hard choosing the one or two stories or articles or books I can afford to buy out of this huge pile of wonderfully-written material.

It’s enough for me to make this remark at any panel discussion for every editor in the room to burst into laughter. The fact of the matter is that the writing in slush piles is notoriously bad. With a few exceptions, the best of it only rises to mediocrity. The most you can say is that there’s nothing flagrantly wrong with the story or article or book. On the other hand, there’s nothing particularly right about it, either.

This is the one great saving feature of being an aspiring author. If you can write—and understanding that most people need to write a lot before they start writing anything good enough to get published—you will eventually get published. But that means you should spend almost all of your time writing, not frittering it away doing “promotional work.” Most of that promotional work will be useless and even the little that has some value has only minimal or marginal value.

Why? For the good and simple reason that, by definition, an aspiring author has nothing much to promote in the first place. That crude reality is not changed in the least by coating it with electrons. More precisely, burying it under electrons.

Okay. That’s enough for this month’s column. What I’m going to do in the next essay is show how an author who is already established—not necessarily well-known; just well-enough established to be taken seriously—can use the internet to promote his or her work.

About Eric Flint

Author and Editor
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46 Responses to Salvos against Big Brother

  1. Mike says:

    DRM is what happens when people who can afford a lot of lawyers and lobbyists (the publishing industry) go up against people who (individually) can not afford a lot of lawyers and lobbyists (the consumers).

  2. tomhr says:

    I regularly buy >The Grantville Gazetteexpensivesmall the catalog< of Kindle-only books are.

  3. tomhr says:

    I regularly buy _The Grantville Gazette_ from Webscription — up till now, in HTML format. Hell will freeze over before I buy a hundred-dollar-plus Kindle or Nook; but Amazon, I recently discovered, offers two absolutely free, no-conditions-apply downloads: “Kindle for PC” and “Kindle for MAC.” Only because I can read Kindle-format books without buying a Kindle, have I bought Kindle-format books. But such books that are offered for sale on Amazon are of two kinds: books that have a dead-tree equivalent, and those that are strictly Kindle books. I am dismayed how _expensive_ are the Kindle books that have paper/ink equivalents, and I am likewise dismayed how _small the catalog_ of Kindle-only books are.

  4. Dave says:

    tomhr – also worth noting is that Kindle software is also free for every major smart phone platform (and even one that’s quite nice but not really major in WP7), and that there’s now an $80 Kindle (albeit one with no keyboard and no touch; so you’ll want to buy and manage your books from your PC) so if you wanted an e-ink eReader before Hell froze over, you can get one now.

    The biggest thing that I think Eric got wrong in his essays was that he really didn’t understand how much the slow take-up of electronic books (up until 2007, when the first of these essays was written) was driven by hardware and marketing rather than by DRM. Amazon’s pretty much demonstrated that in 18-point bold. Good, relatively cheap (if not cheap enough for tomhr) eReaders and ubiquitious e-Reader software combined with an all-out marketing push from the online vendor that a large portion of the population are used to going to for books have meant that eBooks might have been a minor niche in 2007, but they certainly aren’t now. And if Amazon can make a $20 Kindle — and I think they’ll be able to this decade — then “Baby’s first Kindle” and libraries lending out e-Readers routinely are not going to be far behind.

  5. tomhr says:

    If Amazon is smart, they’ll do what IBM did, and allow cloning. But okay, even if there is someday a twenty-dollar Kindle (or Kindle clone), I don’t see ebooks becoming a popular format. I consider a DRM’d ebook to be “distressed,” like a hail-damaged new car, and I want a price reduction for it. Also, I know that the manufacturing cost for an ebook is a fraction of a penny, and I want that also reflected in the price. My personal price point is six bucks for a DRM-free Kindle-format ebook (like what Webscription sells), and five dollars for a DRM-crippled Kindle-format ebook. If a publisher wants to charge more than that, he won’t get my money, and it won’t even be a difficult choice.

    Anyone smart enough, and educated enough, to love reading is going to adapt a logic similar to mine. Dave, it sounds to me like you’re saying that once we have twenty-dollar Kindles, the general public will buy Kindle books in droves, at any price, just because they’re shiny and new. Sorry, but I don’t see that happening. (Except among conspicuous-consumption types.)

  6. Piotr1600 says:

    The manufacturing cost for a dead tree hardback is much lower than you’re thinking – IIRC somewhere in the <$0.75 range, including shipping to the distributor. This has been an ongoing (and occasionally acrimonious) discussion on the Jim Butcher fan pages and there have been some very interesting, solid numbers were ferreted out as part of the discussion.

    The majority of actual costs aren't in the physical book – they're in the process that generates the book before it is printed (writers advances, editing and re-editing in particular) & in the sales/marketing/advertizing.
    Ebooks *do* cost less, but not that much less.

    • Eric Flint says:

      The cost of actually manufacturing a book — printing, ink, binding, etc — is about 15% of the cover price. On a paperback, the cover usually costs more than the pages do.

      It’s very far from being the major cost in publishing. The real savings in ebook publishing don’t come from eliminating the printer, they come from reducing — not eliminating, but greatly reducing — the cost of distribution. For paper editions, distribution costs typically come to 50% of the total cost.

  7. tomhr says:

    So for dead-tree books, publishers have been able to get a large markup, up till now. Of which the author gets an amount that’s 15 percent of the full retail price, at best. But just because publishers HAVE been getting that fat markup for dead-tree books, why SHOULD they get that for ebooks? I’m the guy actually shelling out money, I’m the other variable in the supply-demand equation, and I see no reason to continue to support someone else’s cushy lifestyle at the expense of my own. Especially for what is an inconvenient and temporary product (an ebook).

    BTW, for most books, whether dead-tree or ebook, “sales/marketing/advertising” is measured in pennies. Just ask any author.

  8. Bewildered says:

    Saw the title for this and was really puzzled. What’s the Salvation Army got to do with big brother. Realised after glancing at it that you meant bombardment salvos not Christian\social worker Salvos. Too late tonight, something to read another time …

  9. George says:

    Yep, make it easy and convenient to spend our money and we will do so…I’ve bought a ton of david weber books because I was able to read one for free on line, too. People pirate things when pirating it gives a more convenient and easily used product… First thing I do after I buy a video game that includes DRM is go online and look for a pirated cd crack copy, so it’s more convenient. Make it easy and convenient to get things legit and people will do so.

  10. Reltzik says:

    Still recovering from the archive dive. Very insightful all around. Just a few anecdotes about market opacity. The first book of Mr. Flint’s that I read was 1633, not 1632. I picked it up, not because of word of mouth or because of a book review, but because I was a fan of David Weber. This in turn led me to find and read 1632 after I realized “heywaitaminute, something’s missing here”, and I’ve since devoured most of Mr. Flint’s writings… and most of the ones I enjoyed on the Free Library, I picked up a meatspace version of. No, I’m not a sucker. I just think a paperback is more enjoyable to read than a PC screen, and the value of that exceeded the cost of the books.

    David Weber (through whom I discovered Mr. Flint) I discovered at Barnes and Noble. I was staring at Margaret Weis’s section of the bookshelf and thinking to myself, “I only really read a few authors, I should branch out some.” I glanced at some of the back covers in the immediate vicinity, checked the author’s works just inside the cover to make sure I wasn’t starting in the middle of a series, and grabbed On Basilisk Station. Because Weber is close to Weis, alphabetically, more than anything else. It then joined the to-read pile (why do I keep buying when this pile is nowhere near empty, and am I the only one? … okay, maybe I AM a sucker) and stayed there for three years before I touched it again. The only promotion here was book cover and maybe the consignment process, and it was far from typical behavior for me.

    Mr. Flint, if you’re reading this, you might want to consider the example of Howard Taylor. He’s an example of a successful self-publishing internet-based storyteller, and I think illustrates most of the things you’ve said about self-publication, promotion, short-vs-long-form through dictates of medium, and improvement through practice. (I first encountered his work through what might charitably be called word of mouth, and more accurately called in-jokes and catch phrases that my DnD group kept spouting in the middle of a game despite my best efforts to get them to focus.)

  11. Jason says:

    Hello i am kavin, its my first time to commenting anywhere, when i read this piece of writing i thought i could also make comment due to this brilliant paragraph.

  12. Jeff Ehlers says:

    I think every single book series and/or author I’ve ever followed, bar none, was because I got the chance to read at least one of the books for free; either borrowing it from a library, borrowing it from a friend/relative, or more recently, reading it online for free. I do occasionally buy a random book where I’ve never read the author, but even then there was at least some recognition, whether it’s remembering that I’d seen John Ringo’s name as co-author of some of David Weber’s books, or because it covered a subject that I liked (such as alternate-history novels). But upwards of 99% of all books I have ever bought have been because I had the chance to sample the merchandise.

  13. Bret Hooper says:

    I have sent emails (via PopVox.com) to my senators and representative opposing SOPA and PIPA, and citing this website for proof of my contention that SOPA and PIPA are STUPID as well as dangerous.

  14. Bret Hooper says:

    Eric: Because it needs and deserves a wider audience than just this website can provide, I think you should [re-edit if you see fit and] publish SALVOS AGAINST BIG BROTHER. In the (I think unlikely) event you don’t find a publisher for it, then self-publish and list with Amazon and Barnes & Noble. The income from sales of SALVOS probably won’t rival that of RoF, but at least some who buy it will go on to buy RoF, etc.

  15. Claude Fountain says:

    I am an forty year old male who has been reading since I first learned how to. These days I find that I want to reread several of my old favorites from my twenties. I did collect and keep all my books over the years, and though I can pull down the paperback versions of R.A. Salvatore, I find that I would prefer to read them on my kindle. But they don’t offer kindle editions of the books I want to reread. The books that they do offer electronic versions of are priced much higher than they should be. So I lug around my paperbacks from the mid-1980′s and try to enjoy. I will not spend more money for an electronic version than I would for a physical paperback book.

  16. Amber Vogelgesag says:

    Mr. Flint.

    I found this set of articles last night and I agree with most of it. I will be passing a hard copy of these articles to every English professor here that will take them. I do agree that the vast majority of books that are bought are first made known to a reader via a library, friend, or family member. I have only stated four book series that did did not come recommended. However, I think you underestimate ebooks. At least here at Ferrum College, every serious reader I know has picked up an ereader. For most of us, it came down to space, weight, and price. My kindle paid for itself just through my literature classes. The fact that Baen is nice enough to publish reasonable priced ebooks is just an added bonus.

    However, finding an illegal ebook copy of most novels isn’t hard. All you do is type (authors name) ebook torrent into google and you get pages of results. It uses the exact same method that many use to find illegal downloads of songs. Hell, the only reason I still buy or use the library for the books I read is that I want authors to keep writing. I know that if I buy a book I am more likely to get a sequel. You were write when you said an author’s best defense against copyright infringement is public goodwill. My friends and I buy the books we could pirate because we like the authors we read. That’s the only reason we do.

  17. Richard Gilbert says:

    Mr. Flint, these articles are outstanding. However, it seems that they are incomplete. At the end of the last essay “The Internet Is Not A Magic Wand,” you state what you are going to discuss in the next article. Yet that article is not here. Are there more yet to be published? Are you still writing them? I would love to keep reading your thoughts on this topic.

    • Eric Flint says:

      I stopped writing them because they were columns in a magazine and the magazine folded. Since then, I’ve just been too busy with other things to resume the material.

  18. Duncan says:

    Excellent article I agree with all of it except the advantages of e-books

    I find my Kindle really good when I am tired as I can increase the font size
    Storage
    I have ~ 3000 books they take up a ton of space, when I move I need to move them and re-organize them
    and I want more!!
    If they were all electronic I could carry them in one hand
    Saying that the Kindle is crap at organizing them
    I have about 150 e-books so far – most from Baen
    I do have some Amazon books but I hate the fact that I can’t store them where I want to.

    I have a question – Can a writer change or use additional publishers? –
    Some of my favorite writes don’t use Baen and I am interested to know what the barriers to change are

  19. Michelle says:

    Hi, I’ve been doing politics for over 30 years – and terrorism – and I decided to reread Fallen Angels. I cannot tell you how DEPRESSING it’s got that this book, only nominally possible 8 or so years ago, has suddenly become almost as prescient at Orwell. :( Keep writing though, I like your other works too.

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