You don't matter - and you never did

[Elfwreck]

Originally Posted by NVash

It makes no sense. All this time and many of my favorite books have yet to become ebooks. Many of them arent even around anymore, its hard enough to find the books but then the publishers are missing, the authors vanished off the Earth, what of those books?

There's some legal support for your point:

The law grants copyright holders a powerful monopoly in their expressive works. It should not also afford them windfall damages for the publication of the sorts of works that they themselves would never publish, or worse, grant them a power of indirect censorship.

(Judge Marcus, 11th circuit court of appeals, concurring w/opinion on Suntrust v. Houghton-Mifflin, a.k.a. "The Wind Done Gone" case.)

... file sharing for the purposes of sampling music prior to purchase or space-shifting to store purchased music more efficiently might offer a compelling case for fair use. Likewise, a defendant who used the new file-sharing networks in the technological interregnum before digital media could be purchased legally, but who later shifted to paid outlets, might also be able to rely on the defense.

(Judge Gertner, District court of Massachusetts, Sony v Tenenbaum)

There's some legal support for the claim that failing to exploit a market leans towards fair use if copies or derivatives are made.

But "some legal support" does not mean "grab some orphan works and set yourself up with a publishing company/torrent collection," unless you happen to have some very sharp IP lawyers close at hand.

[GA Russell]

Originally Posted by Kali Yuga

• What's the time frame before you lose control?
• Who gets to decide which formats are "required"?
• How can anyone possibly predict which formats will be viable, and therefore a "required" investment?
• What happens to an author who explicitly says "I hate digital distribution, and I don't want my books out in a digital form at all"?
• What about photographers and magazine articles, which aren't intended to be continuously in print?
• What about a musician who, for whatever reason, refuses to release recordings and only wants to play live?
• What about an artist who wants control when the material is translated into a different medium?
• Is every book ever written, that has not been made into a movie yet, fair game for Hollywood -- without any need to negotiate or pay for the rights?

Kali, I think that your first few questions deal with details that a new law can deal with. I'm concerned with general principles.

Once a work has been released for public consumption, I would not grant the author/photographer the right to limit formats. JK Rowling would not have the right to keep her books from being ePublished. (The govt could set a minimum royalty (a healthy percentage) for living authors to ensure that Rowling would get paid something.)

As I stated before, my views are in regard to works made available to the public. Your musician who doesn't release recordings in the first place would have no duty to do so.

Currently every book in the public domain is fair game for a Hollywood movie. My proposal changes nothing, except that most works would become public domain upon the death of the author.

[NVash]

You do know that after the author dies the estate will want all the royalties right? Some without doing or contributing a darn thing Im sure.

[Kali Yuga]

Originally Posted by GA Russell

Kali, I think that your first few questions deal with details that a new law can deal with. I'm concerned with general principles.

Are you really? So what exactly is this "general principle" you're fighting for?

It's clearly not "availability." JK Rowling's books, for example, are now widely available, ubiquitous and cheap. Who exactly is "wronged" by the Harry Potter not being an ebook -- especially at a time when ebooks are less than 10% of the market in the US, in single digits in the UK and near zero everywhere else?

Nor is it about "rescuing orphan works," since you have no interest in restricting your proposal to orphaned works.

It's clearly not about helping artists and authors, since your proposal would almost certainly strip them of their rights and royalties in short order.

It's clearly not about helping self-publishers. Many will want to stick to digital formats, in order to get maximum distribution with minimal costs. Will self-publishers be required to also publish paper books and audio books, just to maintain their copyrights?

It doesn't help magazines, in fact it will either deprive them and the writers of their rights in short order, or drive them bankrupt with a requirement to keep printing back issues that no one wants to buy lest they lose the rights.

In theory it's about speeding up the process, but in reality there isn't much reason to believe that will actually be the result. Publishers and authors are already knocking out ebook editions. Any time period short enough to actually have an effect would be so short as to gut copyright, or to result in a raft of low-quality PDFs issued in the most perfunctory and cheapest manner just to keep a hold of the rights.

And odds are pretty good that within a reasonable time frame -- let's say, 10 years from the date the first Kindle was sold -- massive numbers of ebooks will be converted anyway. cf the iTunes Music Store -- which started with 200k songs in 2003, and is now up to 14 million songs. Even the most glaring hold-out of the bunch, the Beatles, caved in less than 8 years.

Meanwhile, as much as you want to avoid thinking about actual consequences and stick to "general principles," the devil is still in the details. In the past 10 years, for example, music has dealt with multiple formats: CD, vinyl (yes, it still survives), MiniDisc, HDCD and digital downloads. The music business would go broke if it was legally required to issue every single copyrighted recording in all those formats -- regardless of how poorly they sell -- or lose the rights.

Oh, and how many copies and what duration qualifies? Can the record company produce 10 MiniDisc copies, officially keep it on the books, and "forget" to sell more? Can they post a PDF on their website for 5 minutes, once every 2 years, and thus fulfill their responsibilities? Oh wait, I can't ask you about such trivialities, we're dealing with "general principles" instead.

The "general principle" at hand is your sense of entitlement to have whatever you want, in the form you want it, right now, regardless of the consequences for the artists, authors or anyone else involved, let alone the viability of the new format in question.

I suggest you consider the full impact of some of the aspects of your *cough* modest proposal.

[GA Russell]

Kali, please calm down and try not to make it personal.

There is a concept in the law called "the reasonable man". When the day comes that society/the government/the law agrees with my general principles, the details of whether a copyright holder is doing enough to maintain his copyright can be worked out. One method is to examine whether the effort of the author was made in good faith.

I mentioned a couple of months ago, and it has been picked up by others, that there is no legitimate Perry Mason eBook. I understand that there are darknet Perry Mason titles.

The concept of copyright means that the author can go to court and get a cease and desist order, as well as get paid damages. I'm saying that the court should look at the efforts of the Perry Mason copyright holder (of course IMO all except those written in the last fourteen years of Garner's life should have entered the public domain upon his death), and see if any efforts have been made in good faith. If no good faith efforts to publish the book were made, then the copyright holder would receive zero damages because he suffered no loss. Use it or lose it.

I don't see how my proposal would strip author's of their royalties as you allege. As I mentioned above, the govt could include in the law a minimum royalty to be paid to the author which would be a healthy percentage.

Like other apologists for the book publishing industry here, you make some rosy projections (in this case 2017) for the future actions of the publishers. I'm not so trusting. I can tell you for a fact that there is a lot of good jazz that the record companies have never bothered to release on CD, and CDs have been around for 25 years!

My guess is that the book and music industries have this in common: There is a great deal of art from the 20th century that is now owned by large corporations who have little or no interest in making that art available to the public. They are focused on the smash hits. They are bean counters who have no passion for the art.

I don't object to bean counters going for the home run. But when it comes to their back catalogues (which they have acquired through mergers and acquisitions, and which the personnel/decision makers of today had nothing to do with the making of), I say "Lead, follow or get out of the way." Either release the material, or don't stand in the way of someone who will.

[leebase]

The copyright gives RIGHTS to content creators. There are no obligations for content creators other than to have created the work. It is their RIGHT to have sole discretion over the use of their work, minus a few specified exceptions such as libraries.

The notion that folks should be able to infringe someone else's rights in a "sue me if you don't like it" mentality is screwed up.

In due time the rights will expire. THEN folks can have at it. And yes, "due time" is a matter of opinion, but we are talking law, not opinion. And yes, laws change -- but I'd not advocate for your view of "take what you want until someone sues you".

Again, I must say, this is a FANTASTIC dialogue between the two of you that SHOULD have it's own thread so that others not attracted to the thread title, may benefit.

Lee

[lack]

Originally Posted by leebase

@lack -- it's amusing to see someone post #213 in this thread that this was never a discussion to begin with. For something that's "not a discussion" -- there's been a lot of might fine discussion going on.

Lee, what I mean is You, who wouldn't take anyone's argument, have already made up his mind when he first starts the OP, never think this was a discussion to begin with.
Yes.. I read back what I said and realized that I wasn't being clear about this..
It is a fantastic discussion, but I am afraid to say that you are not participating in it. Frankly speaking neither am I, but that because I knew little of the topic at hand and will stil be the spectator since I have interest in it.

You see, you have valid points. The market for new releases book is there. Be it gullible people's market, art lover's market, or anyone's market, it is there and you are right. As long as the market is there and it is willing to pay the price the supplier put on the products it will live on.

And your second point, that about market other than the above, the supplier can give shit and all, is also amost valid. You see, it is directly right, but as everything else in the world, it could be not right indirectly. You will be right IF the market is distinct to each other, so now all you need is hard facts, to prove that this is the MOST general case in the publishing world. I know I will think if I see hard numbers.

What I am saying is, people are dissatisfied by the current ebook pricing (I only heard mentions about Amazon, how about anywhere else?), and this leads to great discussion here. But you kept defending your two points above, plus saying that people were spoiled and now that it has been taken away from them they simply sulked, while the truth is, if You open your eyes to people replying, you can see that it is not that they don't want to pay premium for new releases, but they are concerned from the way the market is going. That if they given in to it, the publisher will believe people are gullible enough and continue on trampling the market as they see fit.
It was always the market which sets the price. Supply and Demand, junior high economics. But I have seen (and I know someone else will say aye to it) some disturbing cases that recent years have brought. Hype, astroturfing, cartel, price fixing, etc. If you say that these are good for the industry then I disagree with you. Young markets deserve a push, but a mature market will know better to leave it alone.

Originally Posted by leebase

I know -- I used a bit of hyperbole, and a bit of saltyness to grab attention and change the foundation of this never ending topic. I've gladly accepted the shots from you and others, but for the most part, the discussion has progressed splendidly, as I hoped it would.

*gasp* you said it... oh you little flame maker..

Originally Posted by leebase

I was surprised that so many folks seem to be new to the concept that the really don't matter to every producer all the time. I take it for granted that Gucci, Lexus and the like really don't consider the likes of ME when they make their pricing decisions. Do folks really feel "looked down on" when someone says it plainly -- you aren't our kind of customer because you don't pay our kind of prices? To me, that's just life.

That analogy doesn't work. Pbooks have same content on different packaging quality and time of releases: HC, TPB, MMPB. then there is the same content, minus packaging, digitalized with all the pros and cons of it. The pricing of the former, while confusing (to me at least), still looks to be going strong. The latter, still evolving, still subject to tests and market adaptation.

So same content, literally beating a dead horse if you talk about the former, but a fresh discussion every day for the latter. Let the market reveal itself.

[leebase]

Originally Posted by lack

That analogy doesn't work. Pbooks have same content on different packaging quality and time of releases: HC, TPB, MMPB. then there is the same content, minus packaging, digitalized with all the pros and cons of it. The pricing of the former, while confusing (to me at least), still looks to be going strong. The latter, still evolving, still subject to tests and market adaptation.

Yes. It's essentially the same product. As always. Where was the extreme anger BEFORE? Where was the DEMAND that publishers release paperbacks at the same time as hard backs before?

$12.99 - $14.99 is a good deal cheaper than the previous benchmark for new release hard backs. Cheaper. How is that worthy of so much anger? Why NOW should we be gathering out pitchforks and looking to burn the publishers down?

We both know why. Because, thanks to Amazon, it's a price INCREASE from Amazon's subsidizing of new release ebooks (a program who's sole aim was domination of the market).

I just do not believe that, in the main, the folks angry were routinely paying the previous prices. If they were, they'd still see these ebook prices as REDUCED prices. What makes sense to me is that the paperback book crowd had got a taste for NEW release popular books at the prices they were used to paying. Now that SEEMS to be taken away from them and it's p@ssed them off.

Originally Posted by lack

So same content, literally beating a dead horse if you talk about the former, but a fresh discussion every day for the latter. Let the market reveal itself.

I'll let you in on a little secret. Neither "side" in this discussion has changed their minds. When there are hundreds of posts by folks making essentially the same point TO me -- I let charges of "beating a dead horse" bounce right off me. It's the same thing when someone writes me dozens of posts and THEN has the temerity to claim "you just have to have the last word". As IF they aren't vying for that themselves.

Lee

[lack]

Originally Posted by leebase

Yes. It's essentially the same product.

Are we still talking about your analogy? I'm getting lost here.

Originally Posted by leebase

Where was the extreme anger BEFORE?

.....

Now that SEEMS to be taken away from them and it's p@ssed them off.

Why don't we see it this way: a once 9.99 ebook went up to 12.99, ppl get mad. some even protests by doing some ill-aimed acts. Now we'll see if these ppl represents greater part of the sum, and we'll see whether these will have effects on the pricing. It is how market goes. We'll see if ppl think 12.99 met the ebook value. If sales dropped then the supply side will need to lower prices, as simple as that.

My question is why don't you just leave them alone?
If the pricing stays it will turn out that your little theory might be right after all. There is no need to go around telling people words... If you don't think they matter after all then why do you, of all people, think they worth your time enough to be told off?

Originally Posted by leebase

I'll let you in on a little secret. Neither "side" in this discussion has changed their minds. When there are hundreds of posts by folks making essentially the same point TO me -- I let charges of "beating a dead horse" bounce right off me. It's the same thing when someone writes me dozens of posts and THEN has the temerity to claim "you just have to have the last word". As IF they aren't vying for that themselves.

I never said you were beating a dead horse. Read my post again. Debating about an established, well proven pbook pricing is beating a dead horse, but we can still talk ebook pricing any day, cos it is still young and evolving.

[Xenophon]

Originally Posted by tompe

Well, they really do not find new extremely good books so of course that will lead to less cost since they do not search for new authors in that way. I would be very unhappy if new very good authors did not appear just because everybody did things like Baen.

Also, personally I think most of their books are fun to read but they are not intelligent mind-expandingly good science fiction.

Tastes vary. Baen sure publishes lots more of what I want to read than does (say) any of the "literary" publishing houses. I'd even argue quite seriously that the bulk of their books are "extremely good" when compared to that lit-ra-chur (and here's the important part) when measured on what matters to me. This is largely because most modern literature comes up lacking-to-poisonous on attributes I care about. Most professors in University English Departments would probably disagree with me. I think they're mostly smoking crack (deconstructionism, anyone?). But, as always, your mileage may vary. Probably by quite a lot.

As for "intelligent mind-expandingly good science fiction," Baen publish bunches of that, too.

I think that the main thing you're missing is that Baen (the publishing house) and Jim Baen (the editor) have a better record of discovering and developing talent in SF and Fantasy than any other house and editor in the field. Whether that talent is all (or even partly) to your taste is, of course, a completely different question.

Xenophon

[Elfwreck]

Originally Posted by leebase

The notion that folks should be able to infringe someone else's rights in a "sue me if you don't like it" mentality is screwed up.

That's exactly how all civil (not criminal) law works. Anyone is free to violate copyright, ignore their own warranty claims, slander someone else, or commit medical malpractice, and the state won't step in to fix it unless someone sues.

Technically, every time we use the "reply with quote" function, we could be violating copyright. We are quoting without permission. We *hope* that such quotes are within the limits of fair use--but often, the entire original post is quoted. While the TOS grants the forum owner the right to copy one's posts (in order to be able to share them with other servers), no such specific right has been granted to all other members of the forum. Anyone (who had a particularly well-drugged IP lawyer in their pocket) could sue another forum member for copyright infringement.

"Sue me if you don't like it" is how copyright law works.

In due time the rights will expire. THEN folks can have at it. And yes, "due time" is a matter of opinion, but we are talking law, not opinion. And yes, laws change -- but I'd not advocate for your view of "take what you want until someone sues you".

If I were posting at my blog about copyright infringement & opinions about it (which I do, fairly often), I might quote your paragraph there. In which case, I'd be taking what I wanted and saying "sue me if you care to, if it's worth it to you; I think this is legal use, but if you don't--there's a large court system you can engage to argue your opinion."

A lot of supposed "infringements" are very, very blurry. I don't believe there's ever been a successful case prosecuting free digital distribution of material where there's no legit digital version available, like the Harry Potter books, much less free digital copies of out-of-print or orphan works. The Church of Scientology has a long history of trying to prosecute usenet users for copyright infringement--and failing.

[Kali Yuga]

Originally Posted by GA Russell

Kali, please calm down and try not to make it personal.

OK. I'll just repeat, yet again, a few of the things that make your concept completely unworkable, that you have repeatedly failed to address.

• Formats come and go far too fast, and are too numerous, for your plan to work.
• The basic concept does not apply to many types of work that still deserve protection, including periodicals, photographs, screenplays and performance art, to name a few.
• There is absolutely no reason why an author, artist or publisher should be forced to put out their work in a specific format or medium -- or even keep it in print.
• Publishers should not be forced to put out content on any time frame other than the one they decide, since that can often hinge on various commercial aspects.
• Licensing or buying the rights is always an option, except for orphaned works. I.e. there is already a solution for much of these issues, for those who are actually willing to put a little money on the line and accept the responsibility of fulfilling the obligations to the artists.

Originally Posted by GA Russell

I'm saying that the court should look at the efforts of the Perry Mason copyright holder.... if no good faith efforts to publish the book were made, then the copyright holder would receive zero damages because he suffered no loss.

Or, if you're convinced that this is a viable commercial opportunity, you could locate the rights holder and buy/license the rights. Problem solved.

Originally Posted by GA Russell

I don't see how my proposal would strip author's of their royalties as you allege. As I mentioned above, the govt could include in the law a minimum royalty to be paid to the author which would be a healthy percentage.

Once a book goes into public domain, no more royalties need to be paid. That's pretty much how it works. Your proposal isn't a "first come, first serve" situation.

Once you open up the rights, anyone can produce the book. Even if you establish some sort of "minimum royalty," this could easily be a fraction of the original royalty. And, of course, these other companies have no relationship with the authors, no contractual obligations, no auditing requirements -- and thus little inclination to pay what they might owe.

This may work for orphaned works, where there isn't another viable option. But yet again, photographers -- who routinely get ripped off even with current laws in effect, and often have to fight to assert their copyrights -- will perceive this as a massive loophole. Take a look at the reaction of the Digital Economy Act of 2010 in the UK, and you'll see that a system like this is going to require very careful attention to placate those types of artists.

Originally Posted by GA Russell

I don't object to bean counters going for the home run. But when it comes to their back catalogues... I say "Lead, follow or get out of the way."

Yay, yet more slogans. At least your old one was relevant....

At any rate, if this is your position, let the people who want to release it take a risk, and buy or license the rights.

If the problem is that copyright terms are too long, then that's easily fixed -- by shortening the terms. Otherwise I see no reason why someone should get free access to content decades before it's scheduled to go into public domain -- especially when the trigger is so vague, fast-changing and difficult as "deliver the book in a specific format."

[GA Russell]

Originally Posted by Kali Yuga

...I see no reason why someone should get free access to content decades before it's scheduled to go into public domain --

Kali, I take it that the "someone" you refer to is a publisher rather than the consumer. The reason they should get access is because the author is not making a good faith effort to get his book in print, and is therefore withholding it from the public. It is not difficult for the author of an out-of-print book to have his work made into an eBook.

It is my view that once a work has been released for public consumption, the public has a right to have it available (or more literally, a right that it not be withheld). That is the nature of the concept of copyright - a term for a limited time, after which the work becomes public domain. Unlike manufactured goods, the public has a right to the product (the book content).

However, the non-contract publishers' access to the book would not be "free" as you described it. My proposal that the govt dictate that a healthy percentage be paid in royalties to the author means that the percentage would be far in excess of what the author might be able to negotiate.

Your point that the publisher needs to be audited is no different than today. If the author thinks he is being cheated, he can sue. That happens in music fairly regularly. Patti Page and others are currently suing Universal for royalties.

I can't speak about photographers. I don't know anything about them. I don't think that the rules of copyright regarding books should be dictated by the circumstances of photographers.

I am referring to books. And I don't see why magazines should be treated any differently than books are.

By the way, should a publisher print a book without permission under my plan, if that edition is a success, the author could then negotiate an exclusive book deal with someone. That would require the non-contract publisher to stop publishing the book.

[Kali Yuga]

Originally Posted by GA Russell

Kali, I take it that the "someone" you refer to is a publisher rather than the consumer.

Correct. E.g. they get a bunch of content without having to pay advances or any other up-front fees.

Originally Posted by GA Russell

The reason they should get access is because the author is not making a good faith effort to get his book in print, and is therefore withholding it from the public.

The author or publisher is under no obligation to provide you with the content, even if they have already chosen to publish it.

Matthew Barney created a series of films, and the artist and distributor refuse to do a mass release on DVD. Instead, they occasionally show it in theaters (typically at museums) and did a strictly limited DVD (an edition of 20) that sold for $100,000 each. You may not like it, but it is his right as an artist to release it that way -- i.e. to treat it more like a sculpture or a painting than as a film.

It is irrelevant that you may want to watch it at home on your TV, or that there may be all sorts of benefits to Barney upon wide release. He is intentionally exerting control over the distribution of the work; it's his work and he doesn't want it to be mass produced. End of story.

Or, perhaps I write and self-publish a book in 1990; and in 2010, with hindsight, I decide the book was miserable and inaccurate. I should have the right to pull it from publication, and damn it to obscurity if I so choose.

Similarly, if a publisher takes a risk on my 1994 book, and it turns out to be a total debacle that cost them an arm and a leg, and they don't want to put another dime into converting it to a digital format, that's their prerogative.

Public domain has a different set of standards -- as it should. But until a work is in the public domain, the public does not have access rights that trump the artists' and publisher's rights; and not everything that is protected by copyright is, or needs to be, aimed at the widest possible audience.
And absolutely nothing in copyright law requires that a work, once issued publicly, must be perpetually available before it goes into PD.

Originally Posted by GA Russell

Your point that the publisher needs to be audited is no different than today.

Actually, it is. My understanding is that audit provisions are typically stated in the contract, so I can demand they turn over the relevant records. If I have to sue, then my costs for doing so will inflate drastically since I have to pay a lawyer.

Originally Posted by GA Russell

I can't speak about photographers. I don't know anything about them. I don't think that the rules of copyright regarding books should be dictated by the circumstances of photographers.

But by implication, the rules for photographers ought to be dictated by the rules for books?

Or that issues present during transitional periods should become the norm?

Besides, it's not just photographers. Copyright also covers magazines, screenplays, toys, games, periodicals, academic journals, paintings, prints (e.g. etchings, lithos etc), performance art, software, as well as mediums and formats that do not exist yet or are no longer in use.

Also, copyright covers not just big companies but individuals as well. For example: Let's say I am a screenwriter. Under the current system, the instant my screenplay is in a fixed form, copyright is automatically applied. I can submit my screenplay to a dozen movie studios, and know that if they ever want to use my work, they will have to negotiate and pay me. Under your system, however, they can just sit on the screenplay until it is rendered "out of print," and use it at a fraction of the cost -- since the movie studio would only have to pay some pre-set fee, rather than a big advance or up-front cost.

Should Andy Warhol have been required to issue a constant stream of his "Marilyn" prints, or lose the rights? Should he or his estate have been required to publish it as a fine art print and a poster and in magazines and handbills and postcards, in order to maintain the copyright...?

While you may not be thrilled by it, the reality is that micromanaging copyright on a per-medium and per-format basis would significantly complicate copyright, especially since copyright applies across mediums. Copyright works much better when artists know they will be protected, without needing to satisfy a series of onerous requirements or use complex flow charts to know when the work goes into PD.

Originally Posted by GA Russell

By the way, should a publisher print a book without permission under my plan, if that edition is a success, the author could then negotiate an exclusive book deal with someone. That would require the non-contract publisher to stop publishing the book.

?!?

I'm sorry, but your proposal is making less and less sense. What and who defines "success?" Will the 3rd party publisher need to report the income on that specific book to the US Copyright office? What if it "succeeds" in France but not the US? What if it "succeeds" in digital but not a physical medium? How can you get an "exclusive" deal when the book has already been put into public domain?

This would turn into an utter mess, with works constantly going in and out of copyright.


Even if we are talking from a purely practical point of view, it is far, far more feasible for a 3rd party to just license the works or procure the rights. You are not going to change international copyright law to a mess like you propose in anything resembling a workable time frame.

[GA Russell]

Kali, a couple of points.

The terms of the auditing can be written into the law, as can the non-contract publisher's duty to pay the author's legal fees.

You and I have a simple disagreement about whether the author should have the power to keep his work out-of-print. No need to discuss that further, I suppose.

The "success" of the non-contract edition is determined by the publisher willing to sign a contract.

I think I've made my views clear here. I'll let you have the last say. I wish others had joined in our discussion!