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.
Is 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.
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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—as 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.
They are included in the Baen Free Library under “Prime Palaver # 4.” http://www.baen.com/library/
A direct link to that article is also available.
Originally published in Jim Baen’s Universe Vol 1, Num 1, June 2006