Features

net.wars: The third estate - and digital publishers as "raw meat"

"Computers, Freedom, and Privacy" is an eclectic mix of geeks, lawyers, activists, privacy advocate; and - well, anyone whom that mix can get, to serve as "raw meat". It is currently meeting in San Francisco and eating publishers.

In the past, raw meat for Computers, Freedom, and Privacy has been provided by proponents of key escrow (White House spokesman Mike Nelson and DTI spokesman Nigel Hickson), RIAA lawyers, Doubleclick privacy officers, and even FBI officials.

This year, raw meat was supplied by the publishing industry because the big issue was intellectual property rights.

There are a lot of reasons for the CFP crowd to want to devour anyone with the temerity to say that file-sharing constitutes piracy and needs to be stopped. For one thing, the innocent-sounding Consumer Broadband and Digital Television Promotion Act (and the Senate companion bill) seeks to outlaw the sale, distribution, or import of computer hardware or software without copy protection in the US.

Then there's the Digital Millennium Copyright Act and its attendant prosecutions and threats. There are the copy protections on ebooks, DVDs, and the music industry's new services.

So overall, the nice man from the American Association of Publishers had a pretty rough ride during the debate over the future of copyright with John Perry Barlow and Karen Coyle.

The thing is that the debate, even among the digiscenti, is being framed too narrowly. There on one side: land-grabbing publishers, music industry types, and movie studios. On the other side: the media consuming public. At Tuesday's day-long workshop on "Fair Use by Design," in which a roomful of people tried to work out whether fair use could be embedded in digital rights management systems and if so how, these two groups figured prominently in everyone's thinking. They even made two wish lists, one for each group.

The thing is, there's a third group, the actual artists and inventors. They are, generally, not the rightsholders. In fact, as Barlow observed, most artists are not overly exercised about the impact on their livelihoods of fan copying. No, their problem is usually theft by the rightsholders – creative accounting, all-rights grabs, you name it.

Get a bunch of authors together, and despite the Author's Guild's recent complaint against Amazon.com's sale of used books on the new books pages, mostly what authors complain about is that their publisher isn't marketing their book. Or that they've never seen a penny in royalties but they can't afford to finance an audit of the publisher's books. Or that the book they spent three years of their lives working on is being held up in production and may be canceled.

What do rightsholders want? Control over distribution of the material they own. Payment for each use. Attribution. Control of derivative works. Price discrimination so they can offer different pricing structures and licensing terms to different groups of users. A way of stopping arbitrage between those different groups.

Consumers? They want access to everything as cheaply as possible in formats they like. They want to comment, add, parody, and compile clips for their friends. Framed that way, designing copyright law for the future is a question of finding a balance between two legs.

But artists and creators have a completely different set of desires, and they are generally not parties in the debate. Many artists are not particularly Net-savvy; and everything they hear about makes them think they side with the publishers.

Here's what the artists' wish list might look like. The ability to make enough of a living from their work to keep writing their books/playing music/making movies. The ability to develop and interact with a community of fans who appreciate and support their work. Attribution, certainly. The continued availability of their work, so that the book they wrote in 1990 is still available to a new fan who wants to read the entire back catalogue in 2002.

None of these would be something that publishers typically care about. Certainly, many used to in the days when a publisher might take on a young author, lose money for a few books, help nurture the author's career, and reap profits when the author eventually becomes a solid seller. Not these days. The average commercial publisher regards a book as having sold all it's going to in the first four months. Academic publishers typically keep books in print longer, but can't offer enough of an advance for a full-time writer to be able to afford to work for them. In the music and film/TV industries, work that's gone out of print is generally gone entirely; rights do not revert to the artists if the material is out of print the way they do in print publishing.

A number of artists think the solution may be to "disintermediate" all the publishers, allowing creators to communicate directly with their fans. Maybe so. But the reason publishers have flourished is that most artists do not want to run a business; they want to spend all their time creating. Plus, big media are how a tiny percentage of artists become rich and famous.

So it may be a while before the industry disappears. In the meantime, what's needed is a balance of three sets of competing interests, not two. While in the physical world a three-legged stool balances better than any other number of legs, in the world of ideas it adds an exponential amount of complexity.