Monday, October 19, 2015

Fisking the Authors Guild

The Authors Guild just lost one of their ongoing cases against Google. The Guild have been whining that Google Book Scan--a service meant to digitally scan every book so the entire world could gain searchable Internet access to all of that info--is in fact violating copyright and stealing from authors. 

Hey, Authors Guild! Why not also charge readers a fee every time they recommend a book via word of mouth? If you want to give the middle finger to free discoverability, why not go all in?

The Authors Guild has lost similar battles. During Authors Guild vs. Bill Smopey, they sued him because he'd sat in a Barnes & Nobel and read half of The Terror by Dan Simmons but hadn't bought it. Smopey's defense, "After the first 500 pages, the monster wasn't even in it anymore, and I got bored and put it back." The Guild claimed that Smopey owed Simmons's publisher half of the cover price for reading without paying, and for partially crinkling page 342. The court dismissed the case, on account of it being really fucking stupid.

With Authors Guild vs. Janet's Mother, they sued because Janet bought a full price hardcover of Stephen King's The Cell, then loaned it to her mother to read. The Guild demanded Janet's Mother pay Stephen King a royalty, because she had no right to read what she hadn't bought for herself. Janet's Mother's legal team dazzled with the famous, "Well, what about libraries?!" defense and the suit was dropped.

That lead to Authors Guild vs. Libraries, where the Guild insisted that every library extract a pound of flesh from patrons who borrowed a book, in lieu of collecting royalties. But unlike the impossibility of separating blood from flesh,  making the acquisition of a pound of flesh quite impossible, the court did decide it was possible to separate the experience of reading a book with the fiduciary duty of monetarily compensating the author for having done so. Yep, you can read without paying.

In Authors Guild vs Used Books, the Guild assembled its hydrocephaletic brain trust to waste more members' dues to institute law that used book sales are illegal. Since authors only make royalties for the first sale, anyone who reads a book any other way is literally going into that author's house and stealing food from their starving children's mouths, which doesn't make much sense because no one wants to eat something that has been pre-chewed. The case was dismissed when it was discovered the AG legal team was relying on language they'd found in a 2011 edition of Black's Law Dictionary, which they'd bought used on Alibris.com.

Other failed cases include supporting Wendy Dobesky's claim of copyright infringement by Star Wars LLC. In 1976, Wendy claimed to have a dream about some people fighting in space with bright swords, and some guy frenching his sister. She didn't write any of this down, but when she saw Star Wars she knew George Lucas must have used a Thought Stealing Machine on her. The case was dismissed when Discovery failed to find anything thought-related in any of Lucas's notes or outlines. Years later, the Authors Guild again supported Dobesky who said, after seeing Twilight, "Damn! I dreamed about sexy vampires before! Someone owes me fifty million bucks!" That suit was also a waste of members' dues. 

Perhaps it is time to rethink copyright in this digital age? But I've beaten this dead horse before.

The Guild recently remarked on their latest loss, to follow. Their nonsense in unreasonable bold italic font. My replies in sensible plain font.

Today, the Second Circuit Court of Appeals released its decision in Authors Guild v. Google. “The Authors Guild is disappointed that the Court has failed to reverse the District Court’s faulty interpretation of the fair use doctrine,” said Mary Rasenberger, Executive Director of the Authors Guild in New York. 

Apparently making all books discoverable on the Internet, which would not only add to the collective knowledge of the world, but help interested parties find the right books to buy, wasn't fair use. That it would help people find more books to buy seems lost in the fear that people would rather surf the internet and piece together a book random page by random page at great frustration and time cost to get a maximum of 16% of the full title, out of order no less. We all love reading like that, don't we?

“America owes its thriving literary culture to copyright protection. 

Actually, America owes its thriving literary culture to writers who are compelled to create. Copyright doesn't ensure a writer makes money. Readers do. And if the readers can't find the writer because--let's take a wild leap here--the writer's work isn't searchable on the world's biggest search engine, then copyright isn't going to put one cent in that writer's pocket.

Someone explain to me how a text searchable on Google differs from a text on a shelf at a local library? I'll tell you how. A library book can be loaned and read dozens of times, cover to cover. A Google scanned book cannot be read cover to cover. But Google is the bad guy.

It’s unfortunate that a Court as well-respected as the Second Circuit does not see the damaging effect that uses such as Google’s can have on authors’ potential income.

Yeah, damaging. Someone Googles a topic, and it leads to a free except of my book. Every author wants people to browse a bookstore and find their book among the thousands of others. But to be able to do this online, 24/7? That's stealing.

There are many ways to read a book without compensating the authors. Buy used. Go to a library. Borrow from a friend. Steal online. Use a paperback exchange. Read fan fic. 

Authors shouldn't fear being read. Being read will eventually lead to getting paid. Authors should be worrying about not being read, because readers don't know they exist. Google Book Scan wants to show the world books that the world hasn't ever seen before. The Authors Guild wants to micromanage this boon to authors and readers by collecting royalties.

Can someone call Mary Rasenberger on her landline, or if that's too technologically advanced for her, send her a telegram, and let her know the rest of us are living in 2015.

Dead trees are limited in reach because of scarcity (how many there are), proximity (how close they are to a reader), and dicoverability (how a reader searching for that type of book is able to find it). Google Book Scan solved all those problems.

So let's sue them.

Most full-time authors live on the perilous edge of being able to sustain themselves through writing as a profession, as our recent income survey showed, so even relatively small losses in income can make it unsustainable to continue writing for a living. 

What are the losses incurred when no one knows your book exists?

I write funny books about cops chasing serial killers. If Google scanned my books, anyone searching for "funny serial killer thriller" could learn about my titles, read excerpts, and perhaps become interested enough in them to seek them out.

Fair use? Hell, if I paid for Google to do that very same thing, I could write it off on my taxes as advertising.

We are disheartened that the court was unable to comprehend the grave impact that this decision, if left standing, could have on copyright incentives and, ultimately, our literary heritage. 

Because our literary heritage is dependent upon corporations squatting on the rights for Sherlock Holmes and Buck Rogers and Happy Birthday so other writers can't use them in their own work without paying a squatter's fee. 

I'm not saying that copyright still doesn't have a purpose. I'm saying, in a digital world, it needs to be reformed. Writers don't need to dwell on DMAC takedown notices. They should be dwelling on getting as many readers as possible. Even readers who don't pay. Because there is a whole bunch of entertainment out there, for free. Being discovered is a matter of numbers. Restricting access to your writing IN ANY WAY reduces your chances of discovery.

As for money? Show me anyone revered by a large group of people who isn't able to earn a living. If your writing is being widely read, the money will come. There isn't any better advertising for your work than 1M people pirating it. 

But if you can't stand the idea of someone Googling some random term and it leading to your novel which can then be read, in non-consecutive chunks up to 16%, then maybe you need to switch your art to something you have control over, like stoneware. You can decide who touches your stoneware on a case-by-case basis and otherwise keep it locked in a box so no one can steal it. 

Unless, of course, someone takes a picture of your stoneware, puts it on Pinterest, and you get thousands of likes. I mean, think how horrible that would be for your stoneware business...

We trust that the Supreme Court will see fit to correct the Second Circuit’s reductive understanding of fair use, and to recognize Google’s seizure of property as a serious threat to writers and their livelihoods, one which will affect the depth, resilience and vitality of our intellectual culture.”

Calling Google's book scanning initiative a "seizure of property" is like suing a hospital for "unwanted physical contact" when they intubated, catheterized, and pushed IV fluids and meds after the ambulance brought you in. I mean, what were those doctors thinking, trying to save your life without your permission? They have no right!

If you don't want your work read without your permission, write on paper and keep it locked up. But once you try to sell it, you can't put the genie back in the bottle. Some people will read it without paying you. There's no way around that. Suing the companies that give your work free exposure is stupid. 

Or perhaps the Authors Guild only wants "intellectual culture" to exist behind closed doors, at invitation-only events, far away from the prying eyes of the unwashed masses. Because there is nothing so threatening to the vitality of our literary heritage than a bunch of readers looking for stuff to read.

If I joined an Authors Guild, this is what I'd want.

1. A group that would fight for and pay to make my books visible and easily discoverable on Google, Amazon, Facebook, Twitter, and other places where readers search for books. Why doesn't the Authors Guild have a BookBub-type service? Wouldn't dues be better spent on that than suing Google or petitioning Congress

2. A group that DEMANDED new contract terms from publishers, including better royalties, no non-compete or next option clauses, and automatic rights reversion after a set amount of time. The Guild's much touted Fair Contract Initiative is nothing more than navel-gazing mutters that things aren't fair. Even Oliver Twist grabbed his bowl asked for more gruel. He didn't blog about starvation being unfair, while plaintively hoping things will change soon--but no naming any names here! Grab your bowl and demand what you're owed, you chickens.

3. A group that studied and experimented with piracy to expand awareness of books. I'm still waiting for any controlled study to measure the effects of piracy on an artist's income. I only am able to find a lot of hot air, coming from the Authors Guild hellbent on making sure they collect royalties if someone mentions a book title in a Skype conversation, and the fear mongering of companies who get paid for fighting piracy. 

4. A group that tried to reform copyright for the better of humanity, and authors.

5. A group that can be looked upon by authors with pride, rather than as the punchline to jokes about the tragically outdated,

Until the Authors Guild gets their collective head out of 1985 and learns about the Internet and ebooks and how their role has changed from majordomo to the Big 5, they will not survive. 

Take a cue from Authors United, who have taught us that a group of major bestselling authors, spending hundreds of thousands of dollars, can be embarrassingly ineffective when their agenda is so self-serving and stupid.

You can try to sue the clouds for raining on you. Or you can make a fortune selling umbrellas. Which is smarter?

Amazon, ebooks, and piracy are here to stay. No law can ever work if it goes against what people are going to do anyway. The spread of digital media must force us to study how it is being used, so we can benefit from it. It isn't something you can control. It's something you observe. Prohibition didn't work for alcohol, or the war on drugs. Net neutrality will remain, and piracy will always be a part of it. Treat Google as a partner, rather than as an adversary. The same with Amazon. Treat the Big 5 as adversaries, until they reform their contracts. Use the media to push a positive agenda. Hire Data Guy at AuthorEarnings.com to teach you how to conduct your own studies or the marketplace. Abandon the status quo, drop your preconceptions, and start fresh, figuring out how all of your poverty-level members could have a shot at making a living.

If I were in charge, it would take me a week to put the Authors Guild on the right track. 

My first job would be to give the current Board of Directors new responsibilities, the sum total of which would be a daily meeting at Dennys spent brainstorming, and the notes generated will serve as an example of what not to do.

Then I'm bringing in a bunch of young, smart writers to get shit done. Such as:
  • An advertising partnership with Amazon to feature AG members' titles.
  • An advertising partnership with Facebook to feature AG members' titles.
  • An advertising partnership with Google to feature AG members' titles.
  • Letters to the Big 5 demanding better contract terms, and a media campaign held in the court of public opinion exposing the unconscionability of publishing contracts. If it leads to litigation, all the better.
  • Letters to the Big 5 to demand lower ebook prices, for both retailers and libraries.
  • Petitioning Congress to reform copyright law.
  • Health care.
  • Conducting actual studies on piracy.
  • Fighting SOPA and other threats to free speech and net neutrality.
  • Striking if needed.
The Authors Guild isn't beneficial. It isn't neutral. It's harmful. Every time Robinson or Ravensberger whines in the media, they spout nonsense that less-informed readers and writers accept as truths. Until this bullshit stops, and real problems start getting addressed, the Guild will exist to ensure the Guild continues to exist, and do very little for the authors it purportedly helps. If your average member is earning $10k a year, stronger piracy laws aren't going to help. Advertising, better contract terms, and teaching alternative forms of publication will help. Biggering discoverability by saturating the Internet, social media, and retailers with Guild books will help. Relaxing copyright law so more IP can be used by all.

Unfortunately, change won't happen overnight. And it is unlikely it will happen from within. So the best thing an author can do is quit the Authors Guild. Don't lend your name to their weight, or your dues to their war chest. If membership drops enough, and they become weak enough, and orchestrated coup could seize power and rebuild them as an effective tool in protecting authors' rights. Until that happens, ignore them. Or look upon them as you look upon the many mistakes found in history books. 

Just don't get those books on bit torrent. The Authors Guild will send a takedown notice.

27 comments:

antares said...

Not exactly a study on piracy, Eric Flint did a personal experiment in visibility with his book Mother of Demons a decade and a half ago. You can read about it here: http://www.ericflint.net/index.php/2011/09/26/salvos-against-big-brother/
(WARNING! This is the archive of Flint's column "Salvos Against Big Brother." The columns are concatenated without breaks and without indexing. The fastest way to get to the relevant portion is to search for the text string 'The first book I put up'. If you don't, you will regret your choice.)

There is a table in the body of the text. Alas, the table formatting did not survive the transition to archive. The 4 table headings are 1) Royalty period, 2) Total net sales [in units], 3) Sell-through [percentage], and 4) Period sales [in units]. The 2 tables are readable but not easily so.

The Readers' Digest Condensed version: Sales of Mother of Demons increased after Flint made the book free online.

Alan Spade said...

Fear. The Authors Guild is acting out of fear.

Fear, for example, that a group of hackers creates a breech in Google's defenses and that all the content of all the scanned books suddenly becomes available on the net.

Of course, this kind of fear is not what helps humanity to progress. It's conservative and it slows us down.

The authors' guild would be better inspired to ask Google to disclose the mechanics behind its research engine.

Or to foster competition, so that we would not depend on just one company for our searches on the internet (of course, that's not the case, there are already competitors, but Google is big, and I don't know about the competitors' policy towards books).

What if someone like you, Joe, wrote a book about Google becoming Big Brother, and in retaliation, Google made sure that the subjects of your books couldn't lead to your titles in any given search?

Maybe you wouldn't be very much harmed by that kind of measure Joe, but you would no longer be on a level field with the rest of the authors, as far as Google's searches are concerned.

I agree with the bulk of your blog post, though. I would love to see you at the head of the Authors' Guild. What an earthquake it would be!

John Ellsworth said...

Joe, if you would found and head up the guild you've described I would be proud to be a dues-paying member. Excellent post, and oh so constructive. Thank you.

w.adam mandelbaum said...

Whether one is for or against present copyright laws, the legal reality is the costs of bringing an infringement suit for an indie author is prohibitive, and certainly not practical.I defended one against a visual artist that was definitely ripped off by my little darlings, along with four other defendants.The end result? Because ye artist made a technical booboo in his registration, he recovered only twenty grand, but it cost him forty to get the twenty. You can't make that up in volume. By the way that was forty grand in 1991 dollars. So on planet earth,unless you have deep pockets, it is copyright shmopyright.

BRYAN HIGBY said...

You know the piracy thing is entertaining. One of my favorite traditionally published authors, Neil Gaiman, once talked on this topic. His publisher was up in arms when they found out that one of his books had been circulating the internet royalty free. He just laughed and let the pirating happen and his BOOK SALES sky rocketed. Don't give away the farm but by all means be aware of how many options there are to allow readers access to your work and that those readers are why you write.

A.G. Claymore said...

I found a pirate site once where someone was asking if anyone had a copy of book 2 in one of my series. Before I could get angry, I read the comments he made about book one, including an exhortation to leave me a review if others liked it as well...
How can you get upset at that? They're not 'feed you to the sharks' pirates. They're more like the charming, slightly drunk version played by Johnny Depp.
They were having so much fun passing the book around, I didn't have the heart to tell them it's now permafree...

I know a few writers who load their own books on pirate sites.

Folks who absolutely don't want to pay for your book are, (surprise surprise) unlikely to pay for your book.

But they might tell their friends about it...

Wyrding Ways Press said...

This is ludicrous. Why would they want to stifle what free publicity? Of course I don't want all of my books being given away, but you never truly know where your readers are going to find you, and once they find you, you're set. You are completely right when you say that most people would pay for Google exposure, so why is that a bad thing for authors? 16% is really not much at all. You can offer up to 20% of your book as a free preview on some retail channels. You want people to sample your writing. If you're so worried that people won't buy your book once they've sampled it. . .there's another problem there.

Like A.G. Claymore said, these people getting your books for free could be the praise you need to really start selling well. I've recently made some of my books permafree to try to get the same kind of buzz going!

Anonymous said...

I actually think the Author's Guild policy reflects the beliefs of the membership.

Jeff Ezell said...

Joe, You are indeed a jewel, still.

"The court dismissed the case, on account of it being really fucking stupid."

You have just given me a new priceless acronym, RFS!

Keep up the greatness. We love it.

gniz said...

I'm not kidding, Joe.

I think we should create a new guild to truly attempt to represent authors' interests, and I think you should be the first president.

This is not a joke. I don't agree with everything you say or write and we've had differences on this very blog somewhat recently. But I do think that it would behoove indies (and traditional authors who are interested) to have a REAL guild that would help negotiate big picture issues and give us some future bargaining power/leverage.

Any interest in starting something?

David Lang said...

@antares

The situation with Flint and Mother of Demons gets even better. After being free for 25 years it was released in a leather-bound hardcover and sold very well.

Anonymous said...

Sounds like the "J.A. Konrath Guild of Authors Living In The 21st Century" (working title) might be a popular one. All you need is the time to do it :-)

G. B. Miller said...

In days gone by, I would've chuckled out loud and say, "Are you serious?" to all of those court cases that you quoted.

However, I work for a guv'ment entity and the amount of stupid that I've seen people successfully pull off for monetary gain, makes say out loud, "This doesn't surprise me."

Sad to say, people should be very afraid of AG successfully winning a suit based on stupid.

Amazon

Mitzi said...

Joe-
It's not the The AG that has some misguided ideas. I just spent a good part of the morning Tweeting on #notchilled how Romance Writers of America was too slow to tell its members not to send work to Ellora's Cave, after years of issues and complaints from authors of nonpayment of royalties and possible mismanagement. It was a year after EC's SLAPP-like lawsuit was initiated against blogger, Dear Author, for RWA to say anything to its members.
This is not an organization working for its members and neither, as you have so frequently pointed out, the Authors Guild.
Authors, especially those who are published with a small press, need an organization that has their back.
It seems that most author organizations are in bed with publishers.
I'd join your organization and pay dues. I'll use the money I'm no longer giving RWA.
Mitzi Reinbold w/a Mitzi Flyte

Steven M. Moore said...

Hey Joe,
I wonder how Authors Guild would treat my giving away freebies on my website or Wattpad etc? Can my readers or I be sued for stealing my royalties?
Thank goodness for the used book decision. Half my sci-fi collection is made up by old paperbacks found in used bookstores. I love them--the dustier the better (I take an extra dose of allergy medicine before visiting one).
And I like your ideas. Maybe we indies should start our own Authors Guild?
r/Steve

Ryan Petty said...

Thanks, Joe.
Brilliant as damned near always.

I’ll join if you make the mistake of devoting the time it would take.

Chris Meadows said...

I honestly think we owe the Authors Guild our sincere gratitude for being so lousy at pushing for publishers' rights. If it weren't for them, it's possible our digital landscape now might look very different.

Mauser said...

Hmmm, if a guy had to pay for a book he read in the bookstore, can I demand to be paid back for the books I've bought but haven't read? Same logic (for questionable values of logic).

Kenny Chaffin said...

Excellent! So very true in all ways!

Geoff Palmer said...

"We have a massive system to regulate creativity. A massive system of lawyers regulating creativity as copyright law has expanded in unrecognizable forms, going from a regulation of publishing to a regulation of copying."

Lawrence Lessig

gniz said...

I have left the writers Cafe at kboards and started my own indie author forum, Joe.

Thought it might be okay to post here. All writers are welcome to join, its a public forum and I will be running the show there.

http://indiepubclub.com

Come swing by and start a discussion!!

Best,

Gorvince, aka G aka Gniz

Patrice Fitzgerald said...

Informative, inspiring, and funny once again, Joe.

In your spare time, can you start that new guild for writers?

Looks like we need to make a fresh start.

Walter Knight said...

"Really fucking stupid" is a technical legal term. I know, because I probably went to law school.

Anonymous said...

Bryan Higby,

I think it depends on who is buttering and on which side the bread is buttered.

Neil Gaiman, a successful and notable figure, has published works with numerous publishers. People who buy his work aren't necessarily loyal to a publisher, but to him and his works they like. Dropping one work by one publisher for free may be a wise decision For Gaiman to raise awareness of his name and all works by all publishers.

However, if that's the one work by Gaiman that one publisher has, it ain't doing them a lot of good to not be paid for it; they'd much rather prefer it was another Gaiman work by a different publisher.

Anonymous said...

Clearly this person does not understand copyright or its benefits. If the article's author had their material released by the incompetence of a company that has copied it to increase their own brand value perhaps the author would understand why having digital copies stored by a company for the expansion of its own brand value isn't in the best interest of anyone who is an author or publisher. A mere promise "we won't be hacked" is a bull excuse for copying an entire work without permission.

Mark Carleton said...

I'm trying to get started as an E-writer. Thank you for your service.

Luke Kendall said...

The Australian Society of Authors takes a similar position. I think it comes down to a deep lack of understanding about the value of discoverability and a complete inability to see monetary value in anything except actual money. And an inability to see beyond the walls of the traditional-publishing fortress. I've been planning to blog about this topic for a while; since you and I seem to think so much alike on this subject, I'll make sure to link to your article and try to cover some different points when I get around to it. Good article, thanks!