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 somewhat 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.
That’s preposterous. Piracy is a crime that involves such things as:
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.
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 become 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 . . .
Last month, 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 a few 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.
Originally published in Jim Baen’s Universe Vol 1 Num 5, February 2007