If You’re Not Moving Forward, You’re Falling Behind

So, maybe you heard, Apple lost? I wasn’t the least bit surprised given the case was so obviously apparent that it makes Michael Bay movies seem like masterpieces of unpredictability. Hell, even their most vocal supporters would often near or outright concede they colluded, justified, of course, because Amazon, conspiracy, evil, apocalypse, Bezos is a vampire, whatever. I stopped listening once it became apparent these folks wanted the mutually exclusive ends of some fondly mused about artistic utopia of literacy and culture, and wanted it achieved under the colors of the profit-seeking billion-dollar publisher conglomerate gatekeepers. Say what you want about Amazon, but if I’m truly not interested in the commercilized publishing industry, their system and the digital and print on demand publishing environment that’s grown with it, will allow me to carve out a place where I can do whatever I like to my artistic heart’s content and still reach the marketplace. The old publisher system would brook no such quarter. Arguing for artistic merit in literature and backing those who’ve largely been an impediment to it is a logical inconsistency I can’t get past.

From the time the Dept. of Justice first announced the investigation, then the charges, followed by the publisher settlements, the trial and now the decision, I read more than a few opinions in defense of the Agency Pricing scheme at the root of the matter. They all basically boiled down to the same thing: the DOJ doesn’t get how the industry works, books are not widgets and Amazon is a monster that, if we do nothing, will burn the Earth to ashes. The Amazon monopoly concern is founded in some truth. I share it myself, to an extent, mostly of the point when Bezos moves on. The next regime that takes over is my concern.

The difference between their opinions and mine is that I recognize how Amazon achieved their position in the market. They did it by breaking the monopoly publishers had established over several decades. The testimony in the Apple case painted a picture of publishing CEOs not at all unfamiliar with routinely meeting with their fellow executives and exchanging notes on competitive circumstances. The control they had may not have been a traditional monopoly, but it sure as hell looks an awful lot like a cartel. And that says nothing of the virtual monopsony they collectively held, due to their gatekeeper role, over their suppliers (writers). Amazon broke their hold by addressing those most disaffected by the cartel’s established structure, using technology to do it. The same disruptive conditions they used still exist and I am confident can and will be directed at Amazon in the event they change course into genuinely predatory waters. But please don’t ask me to back the old, more restrictive cartel as the better choice.

Often, there’s a “won’t somebody please think about the bookstores!” moment tossed in there, too, to pull on the heartstrings of nostalgia. But, again, there’s that same dichotomy of logic in what they claim to want and what they’re actually advocating for. The health of independent book stores is clearly a concern for many, but when you present the Borders and Barnes & Nobles of the world as victims in the same mold, you’ve lost the path to rationality. Barnes & Noble in its prime was a profit consuming monster that left a wake of boarded up independent stores behind its publisher-enabled bulk-level discounting. What’s good for B&N and what’s good for independent stores are completely divergent. B&N is no ally of the corner book shop.

This argument openly backs extraordinary leeway and support for entities with an established history of actually doing what they fear Amazon might do in the future. The intellectually honest argument would be to advocate for a third path that keeps the publishers’ cartel broken and restrains Amazon’s ability to have an out-sized influence on the market. The relative absence of that third path in the anti-Amazon rhetoric makes me wonder if it’s these people, so vigorously defending both the greatness of a diverse literary culture and the corporate bohemoths who have perverted that to the greatness of their profits, who are the one’s who don’t understand how the publishing industry really works.

Amazon is a corporate bohemoth, too, of course, one that presents some very real risks for the future. But, right now, they provide a ton of benefits to a ton of people who aren’t those guys, namely readers and writers. You can say an Amazon-led industry will turn out badly for those groups in the long run all you want, but that’s not the case today, or in the forseeable future which, admittedly, might be short.

You don’t like Amazon? Fine. Let’s talk about how we move forward from the progress and advantages Amazon’s made. But if you want to talk me into moving backwards into a situation that restrains me as a writer both creatively and financially, and as a reader, both in choice and higher prices, you can take that worn out nag of an argument elsewhere.

Free The eBooks! New petition calls for supporting consumer ownership of ebooks…I think

Yesterday, I saw a link to a new petition on the U.S. government’s website to allow the “unlocking” of ebooks and reaffirmation of ownership rights by consumers for these digital goods. This comes on the heels of the Obama administration coming out strongly in favor of fully legalizing the jailbreaking or unlocking of cell phones. I agree with both sentiments, but the new petition has some issues. Here is the text: 

Protect Readers’ Rights by Unlocking Ebooks

The White House recently came out in favor of allowing consumers to unlock their own cellular telephones. We are asking the White House to apply the same laws and provisions to ebooks.

The purchase of a book, whether online or not, is a purchase, not a license. Digital books should be legal to read on any device that supports standard text files. Legally purchased digital books should not self-destruct, expire or disapper, except under conditions of damage or obsalescence. Within reasonable limits, book purchasers have the right to lend or give books to friends, charitable organizations and libraries. Finally, libraries should be permitted to lend ebooks under the same rules as physical books.

We ask the Obama Administration to champion the rights of readers to own their ebooks.

So, typos notwithstanding, let’s discuss. And by the way, if you’re going to post a petition concerning important issues like literature and consumer rights, you really should spellcheck the damn thing, otherwise your credibility could “disapper.”

For starters, the White House didn’t apply any laws or provisions regarding unlocked cell phones, they only expressed support for the notion going forward. The relevant laws concerning this, specifically in the DMCA, clearly ban the activity. Their opinion on this is all it is, just an opinion. For cell phone unlocking to actually be legal, it’ll take a legislative fix. Good luck with that. Not to mention, they stopped short of showing support for similar unlocking of ereaders and video game consoles, etc (they did mention tablets but only in the limited sense that they were becoming more like smart phones which dedicated ereaders are definitely not). A logical view would follow that if jailbreaking phones is okay, then doing so with all devices should be as well. But the White House doesn’t stretch that far, with their stated position directed at preventing lock-in by telecomm service providers and has nothing at all to do with content providers. In fact, the White House specifically called for “narrow legislative fixes in the telecommunications space.” That’s a far cry from rallying around customer rights for content they purchase. It’s certainly a step in the right direction, but there is no law or provision in this that’s even applicable to content rights for consumers.

I completely agree with the statement that buying an ebook is a purchase not a license, but that’s far from a popular position to hold. Over the past couple months, in arguing in favor of resale rights to digital goods, I found myself in many places arguing just that point of view. Content providers, including many independent writers, are clinging to the license scheme, and with some solid justification. There have been a few conflicting court decisions, but it’s far from decided that the sale referred to here is, legally speaking, actually a sale. I believe it is, and I think the licensing regime we’ve got going on here is potentionally the greatest threat to consumer rights in any of our lifetimes, but I’m definitely on the minority side of that point of view. It’s going to take a favorable SCOTUS ruling to affirm such rights, as a legislative fix simply isn’t happening in this atmosphere, and I wouldn’t hold my breath for it, even if I absolutely believe it’s what needs to happen to retain balance between producers and consumers in the stream of commerce.

I’m somewhat confused by the statement that says digital books should be legal to read on devices that support standard text files. Ebooks aren’t standard text files and, as formats improve (epub3, html5, etc) they’re even less comparable to simple text. Unless the petitioner is advocating for stripping off the bells and whistles to bare bones text, I don’t understand the point of this statement. Seems naive and, much like the recent lawsuit from bookstores against Amazon and the Big 6 calling for “open-source DRM,” whatever the hell that is, it comes off as very tech-ignorant.

As for libraries being able to loan ebooks under the same rules as print, I have two questions. One, ebooks aren’t print so why would you want to limit libraries to a physical standard that doesn’t necessarily apply? Secondly, and most importantly, the petition plays fast and loose with the first sale provision of copyright law. The ability of libraries to lend physical books as they have comes from first sale. The petitioner’s opening statement that an ebook buy is a purchase not a license supports a first sale position, but it also seems to go out of its way to avoid even mentioning consumer’s rights under the same provision, notably resale. Is the suggestion here that libraries should be granted a waiver to exploit first sale rights customers shouldn’t have, even though it opens with a strong statement supporting a first sale argument? I don’t get it. If the point here is to free ebooks from lockdown control of content providers, why skip the most important tool to achieve that, a true ownership stake in the ebook for the purchaser?

What I see as the big flaw in the argument here is the warping of the concept of first sale rights. Libraries can have them, apparently, the license scheme used to block them is dismissed, yet for some reason, consumers should still be left wanting for their full rights under copyright law? Why? And what, exactly, are reasonable limits to purchasers lending ebooks? Why should libraries get more rights to lend books than consumers? How is it that I can give away or donate said ebook, a library can then use first sale to lend it, but I can’t use the exact same provision of copyright to resell it? I thought this was about freeing ebooks for consumers, but it seems more like exempting libraries than truly benefitting paying readers.

The petition ends with a call for the Obama administration to champion the rights of readers to own their ebooks. I agree, but that’s not what they’re calling for here. This petition still ignores first sale rights for consumers while championing them for libraries and even accepting restrictions on consumers to lend or give away said ebooks. This isn’t ownership at all, but simply a desire to read a Kindle ebook on a Nook or similar type of arrangement. If all you really want is to prevent content provider lock-in to specific devices, then say that. Don’t muddle the issue with notions of first sale or ownership that you’re not even advocating. The wording of the petition also allows for ebooks to be deleted or removed due to obsolescence (misspelled obsalescence, which is a fascinating freudian slip, as license schemes are already limiting the very idea of what constitutes a sale).

I think this is a nice thought, preventing vendor lock-in has some definite merits, but ultimately this petition is poorly executed and unnecessarily convoluted. And again, spellcheck, dammit!

Live Movie Review: Cabin in the Woods

I always wanted to try something like this. I was sitting around the house this evening, feeling pretty bored, and I had rented Joss Whedon’s Cabin in the Woods earlier in the day, so I thought, what the hell. The following is my unvarnished opinions on the film, posted as I watched it.

(Note: there will be spoilers. Of course, this movie’s like a year old, so if you haven’t seen it by now, you probably don’t really care anyway, but I thought warning you would be the polite thing to do. Unless you actually wanted the surprise of finding out if there’s spoilers in here, in which case, I’m sorry for spoiling that.)

1:04

What the hell was that? Ominous generic horror movie music and credits opening to, what, public domain Dante’s Inferno artwork with blood dripping on it? Is this an allegory or a horror movie? God, I hope its a horror movie and not some attempt by Joss Whedon to make a point. By the way, how pissed do you think the dude who did the original artwork for The Divine Comedy is that he wasn’t born in a time with copyright? That guy’d be a billionaire by now on residuals from third rate horror flicks alone.

2:58

Ok, so generic male receding hairline corporate dude was entirely too confident blowing off the concerns of the hot scientist babe. Something tells me dire consequences lie in wait. Something like, oh, I don’t know, every horror movie ever made.

4:08

A conversation between a smoking hot blonde in a skimpy sundress and a smoking hot redhead in her panties in the film’s first five minutes? Bravo, Mr. Whedon! He certainly knows his audience.

5:05

Hey, is that Thor? Yes, yes it is. I bet he uses a hammer at some point. Chris Hemsworth has brandished a hammer at some point in every film he’s ever been in. Seriously, Thor, The Avengers, Snow White and the Huntsman…or was that an axe? Actually, I don’t know if that’s true…Thor!

7:07

Holy shit! Did they do any merchandising for this film? Because I’m pretty sure that two-foot bong that collapses into a to-go coffee mug is the single most brilliant invention in the history of civilization! These things should be available in a store near everyone! Strategically placed between the Maxwell House and the Doritos, naturally.

12:19

So we’ve got the stock crew for a horror movie–the jock, the slutty blonde, the black guy, the stoner and the survivor girl–in the stock situation of having a party weekend at some relative’s isolated cabin. They’ve even had the stock ominous warnings of the backwards country dude on the way. This is pretty much Horror 101 so far. So either Joss Whedon just needed a paycheck and mailed it in, or he’s trying to be clever.

13:19

WTF! Did that bird just fly into a forcefield? Yup, clever it is.

21:21

Uhhh…ok. That was just a gag scene, right out of a Scary Movie spoof with the Harbinger. A speaker phone gag, at that. What is going on? We’ve got a serious cliched horror film being controlled and directed by two guys straight out of Airplane? Dammit! Whedon’s being clever. I’m not going to say this has totally gone off the rails, but it’s teetering right on the edge.

24:27

Alright, Whedon brought it back a bit with that scene. These corporate lookin’ guys are controlling things but only to a point. “If they don’t transgress, they can’t be punished.” That sounds like all kinda bad news for Scooby and the gang. But still, bad, bad choice to go with that speaker phone gag.

27:53

Oh, poor Dana! Talk about awful timing. After steeling herself up and taking the dare when Thor called her a pussy, probably thinking she’d have to make out with the wolf head like the blonde did or flash her tits or something, bam! The mysterious cellar door flies open for no reason and that becomes the obvious dare. Sucks for her! She’ll be alright, though. She’s the survivor girl.

33:39

See, this is good kinda clever. The basement filled with creepy ass stuff, I’m presuming all of it cursed. Sort of like a choose your own adventure, but with a horrifying death at the end of each option.

38:19

So not only are the corporate dudes running the show and spying on their every move, they’re making them act even more stereotypical that they already are. I’m not really sure what’s happening again. They’re answering to what or who exactly? And since when do creatures like that want their sacrifices delivered up as horror movies? Zombie redneck torture family? What happens if they fail? Can I put any more questions in this paragraph? Is that microwave popcorn done yet?

44:00

Alright, now we’re getting down to brass tacks! But, honestly, almost 45 minutes before someone gets brutally murdered in a horror movie? Slacking, Whedon. I love the bear trap on a chain, though. That’s got a place in my “shit I really hope to god I never encounter in real life” list.

51:00

Oh, paranoid nihilist stoner dude, we hardly knew ya. I had a momentary hope that super coffee cup bong was gonna save the day, but that damn redneck zombie just took it in stride. And right after he noticed the hidden cameras, too. At least he died knowing there really was someone watching him. Go gentle into that good night, paranoid nihilist stoner dude.

54:40

That bear trap on a chain makes a reappearance! It’s climbing up my list of horrific items I never wanna see with a bullet! And for an instant there, I thought Thor grabbed a hammer, but it was just a 2 x 4. He’ll get one before this is over and done though, just you wait…

56:12

The Japanese dropped the ball and now Kiko’s spirit will live on in the happy frog. Sounds nice.

1:01:18

He’s not going to do what I think he is? No, no, no! Thor…no! He did. Well, you could say he “hammer”-ed that force field. With his face. I get it! It’s a metaphysical sort of thing. Hemsworth didn’t wield a hammer in this film, he became the hammer. Streak saved. (Again, I don’t really know if he had a streak.)

1:02:56

And then there was one…survivor girl. Good to know that the death of the virgin is optional, though. I’ll keep that stored away in case I ever need to appease some ancient diety. I’m really not digging the puppet master corporate types side of this movie. The tone is off. Either the horror movie side is took heavy or the puppet master side is too light. They’re clashing in an unenjoyable way.

1:06:58

Damn right! Paranoid nihilist stoner dude lives! And he saved survivor girl by finally overcoming that horribly frightening bear trap on a chain! The corporate folks do seem a bit disturbed by this development, however.

1:18:06

This is awesome! Just total chaos, every horror movie monster you can imagine and then some just running totally amok! They evidently had a sizable line item for fake blood in the budget of this film. This totally makes up for making me wait half the movie to see somebody offed.

1:19:00

A murderous unicorn? Really? Eh…

1:23:23

Ladies and gentlemen, Sigourney Weaver! Conveniently here to explain everything they couldn’t be bothered to present through actual narrative storytelling. Hoo-rah!

1:30:33

Giant evil gods. Huh. Has anyone checked on Joss Whedon lately? How’s he doin’? Maybe somebody oughta give him a call just to say hello or send him a cookie bouquet. Jesus, that was a cynical ending! Fuck it, humanity deserves to die so let’s just fire up a joint and watch the world burn. Man, I thought I had a low opinion of the state of things, but that movie was just…dark. And not in a good way. That’s the kinda shit where I wouldn’t be totally shocked to find out whoever wrote it offed themselves later.

Overall, not a good movie. The main plot device was too clever for its own good, and Whedon setting two different tones (horror and almost comedy) between the two halves of the film just didn’t work. And that ending, wow. I’ve seen and enjoyed unhappy endings where the heroes fail and the world crumbles but that’s the first time I’ve ever seen the protagonists, the good guys of the film, just decide to let the world end even when they easily could have stopped it. It’s just too callous of a disregard of basic humanity. The choice was he can die or he can die and cause every soul on the planet’s death, too. Cardboard as they were, and even with stoner dude’s obvious nihilism (which, in and of itself, was pretty unrealistic) I just don’t believe either one of those characters as established would have made that choice.

This whole movie felt forced. The different tones were forced together, the horror movie within a horror movie element came off as a smug, look-how-clever-I-am device. The over-the-top humor seemed awkward and out of place for the most part, and I don’t buy the ending at all.

So, that’s it. Even though the movie sucked, this was kinda fun. And I actually made it all the way through without getting bored and bailing to go get some nachos.

Final Conclusion: Stay away. Stay far away.

Published in: on February 11, 2013 at 7:59 pm  Leave a Comment  
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Stop Stealing From Your Customers! Eroding non-creator copyright protections hurts us all

The past week, I’ve been caught up in philosophical meanderings related to the digital goods business and the notion of copyright law. I’ve read quite a bit here and there around the web on the subject and I see more than a few disturbing things.

1. Most people, including creators, don’t really understand copyright

I am continually bothered by the number of writers, musicians, etc who seem to believe copyright gives them some sort of all powerful right to totally control what happens with their work, even after it’s been sold and is out in the world. Copyright doesn’t do that. It grants you a limited monopoly right to use your work commercially, nothing more. One of the primary reasons there is so much consternation about copyright is that those limitations are slowly being eroded away. Life plus 70 years is a flat-out joke that totally spits in the face of what copyright is all about. Think about this for a second and tell me that copyright’s ends of protecting the public interest even still exist: Not one single American creative work entered the public domain statutorially this year. None. Nada. Zero.

Things like the upcoming Kirtsaeng decision in the Supreme Court, depending on how they rule, and the intricate licensing schemes pioneered by the software industry and dove into whole hog by the media industry purposely erode first sale rights, giving creators control of secondary markets (or the ability to prevent them altogether). That also undermines the idea of limited protections. The newspaper industry fighting against Google News and aggregation is an all-out assault on fair use, yet another attempt to wipe away or severely lessen copyright law’s limitations.

I can’t totally blame creators who behave as though they have some kind of all encompassing powers under copyright, media companies have been working very hard behind the scenes to make it that way for their own benefit. But those limitations exist for a reason. Take them away, and the entire purpose of copyright gets perverted away from a protection that gives creators a fair chance at exclusivity for a while to try and make a buck and allows the public to benefit from these works in a way that promotes future progress. Without those limits, the very progress copyright law is supposed to promote gets stunted.

Copyright law grants you the opportunity to make money, it doesn’t guarantee it, and the value to society on the whole is supposed to be balanced against creator’s interests, protected from the very exploitation the erosion of those limits is actively causing.

2. Very few on the creator side seem to give a damn about consumer rights

This, to me, is the most disturbing trend I see emerging, especially when it comes from Indie authors. You can’t talk out of one side of your mouth about appealing better to readers, then ignore or argue against the idea that readers also possess protections under copyright law that we’re actively taking away through the licensing scheme ebooks are sold under. The digital goods market is built upon a foundation of taking away consumer rights. What’s worse, is that we also have creators out there throwing around loaded terms like piracy and stealing that aren’t accurate. Many times, they’re used to demonize people bahaving in ways they always have with regards to sharing material. Every man, woman and child in this country commits an infringing act on par with downloading a torrent file every single day. Probably several. We just don’t see it and most probably don’t even realize we’re doing it. The internet has brought part of that behavior out into the light of day. That doesn’t mean it wasn’t happening on a major scale before the internet. It absolutely was. It didn’t destroy these industries, in fact, I believe it made them considerably stronger. File sharing won’t destroy these industries today, either. What will, however, is if we continue on a path that makes copyright effectively infinite, steals rights from consumers at every opportunity, and tries to force unprecedented controls onto people for works they’ve already bought. It also doesn’t help if creators act like entitled assholes, throwing accusations of theft around while totally ignoring the fact that their entire business model is based on gutting consumer rights. Take a deep breath, go read up on the history of copyright and try to grow a little perspective.

And remember, the perversions of copyright are being driven by giant media conglomerates for their own ends. They don’t care about your rights as a creator any more than they do the rights of consumers. Don’t confuse your interests with theirs. When they’re done wiping out consumer rights, they’re very likely to turn to undermining yours, if they haven’t already. And don’t expect what fans you have left to sympathize when that happens.

3. Everyone seems to believe digital goods are infinite despite the obvious reality that they’re not

I still don’t understand how otherwise intelligent people buy into this heaping load of bullshit. A big part of the argument justifying swiping consumer rights is that digital goods are infinitely perfect. Come on! Do you really believe that we’ll be reading these same epub or mobi files on these same devices five years from now? Or ten? Technological progress is just going to come to a grinding halt, is it? We’re not going to have better, more capable devices in the future with improved or even radically different formats for these works?

If consumers don’t have any ownership rights in these products, what’s to stop an entire generation of culture from being essentially erased on the whim of corporate interests the next time a shift in standards or new technology comes along? One of the key arguments I’ve seen against second hand goods is the idea that no one will ever buy new if the used versions are identical. To begin with, nothing gets sold second hand without it being bought first hand. And don’t give me the line about people wholesale copying the same file and selling it over and over again. That’s a tech problem no one has bothered to solve because the entire industry was built upon the notion that readers were never going to have these rights. More importantly, when we do have a media shift of sorts, these current files will no longer be identical or the best thing going. If we have resale rights, I could be buying today’s epub files cheaply used or choose to buy the newest holographic version that hits the market in 2025. The long tail may be somewhat infinite, but that doesn’t mean the specific containers we’re using today are. I’m not a big fan of the notion that corporate interests can remove a giant swath of our creative culture just by switching standards or technology. Show me where in copyright law that kind of thing is allowed. It runs directly counter to its stated intent of benefitting the culture.

My perusings through this issue, mostly because Amazon filed a patent they may never even use, have been pretty eye-opening. As much as I love ebooks, and the new digital frontier, there’s always been this nagging little voice in the back of my head and I finally figured out what it’s saying: “Hypocrite!” Despite the fact that I frequently argued against increasingly controlling software licenses during my years in the industry, I never really connected the fact that, when I sell an ebook to a reader, I’m engaging in the same activity that I felt was so exploitative from the other side. I’m starting to get a picture of the weaknesses in selling digital goods, and most all of them stem from the erosion of limits in copyright law. Economic karma, perhaps. It may seem odd that I, as a writer who earns money because of copyright, would argue against more power granted to me as a creator, but I take the long view. It’s simply bad business to rip off the people paying us, and that’s what we’ve been doing from day one. By advocating for or even turning a blind eye to the giant theft of customers’ rights we’ve all taken part in, we’ve created a system that is already doing damage to our culture. Copyright doesn’t just protect creators, it protects consumers and society on the whole in a fine balancing act. What it shouldn’t be doing is warping that balance in support of business models that wouldn’t function without the self serving perversions.

Say what you like about copyright, but its value is much more than simply protecting my rights as a creator. Our system has lurched away from any semblance of balance, and it’s getting more slanted every day.

Over the past few years, I’ve read many articles from creators containing a plea for people to “stop stealing” from artists through downloading. I’d like to end this by throwing that plea back at creators.

Stop stealing from your customers!

Here are the links to the other copyright related pieces I’ve written lately, for you reading pleasure.

The Benefits of Globalization Don’t Apply to the Little People

Second Hand Blues: First Sale Rights and Used eBooks

Amazon and the Mystery of the Great Used eBooks

Amazon and The Mystery of the Great Used eBooks

I am finding the notion of first sale rights and used ebooks pretty fascinating these days. I wrote a bit yesterday about how I suspect that taking away first sale rights from consumers has damaged the book business. Today, I read this piece by Marcus Wohlsen for Wired, completely wrapped in consternation over Amazon’s patent filing for a digital goods resale scheme. There’s a few points in the article I’d like to discuss. I’m not a lawyer, so these are simply my opinions on how copyright law, particularly first sale, might affect Amazon’s actions with regards to used digital stuff.

“Digital content is infinitely reproducible. No technological limit exists to how many times a single digital original can be copied and resold.”

No technological limit exists because nobody’s bothered to implement an effective one. And maybe I’m wrong, but isn’t all that fancy DRM we’ve had shoved down our throats a technological limitation to copying? Pretty sure that exists. It may not work very well, or might be crazy-easy to circumvent, but it exists. The entire ebook market has grown under the assumption that consumers had no right of resale, therefore no screaming need to invent one. But look, ReDigi is getting sued for its used digital business and they have a method to limit copying. Amazon’s patent here is another. If second hand digital goods becomes a reality, you can bet there’ll be numerous technical methods to deal with this post haste.

As for copying infinitely for resale, that doesn’t even apply in this case. What Amazon’s talking about here seems to be totally in-house. They already know who bought what and how many times. They’re suggesting a scheme to resell the licenses not so much the actual ebooks. There’s no way somebody copying an ebook bought from Amazon is going to be selling it over and over again without Amazon being willfully complicit. They have zero motivation to engage in something so risky and outright stupid. There is no chance anyone will be selling multiple copies of the same ebook in the system Amazon’s trying to patent.

“Just as with physical books, publishers would only have a say — or get a cut — the first time a customer buys a copy of an e-book. The second, third and fourth sales of that “same” e-book would be purely under Amazon’s control.”

That would totally depend on how this was executed. If a first sale use is exerted to allow the resale, then it’s actually the customer who has control of the resale. Amazon would, theoretically, either expedite a sale between two customers and take a small cut, or create a system where they buy the ebooks from the customers, then they would gain those resale rights. The alternative is if the resale was a product of a licensing agreement with the publisher, in which case, no first sale rights were exerted and Amazon would have as much control as the licensing agreement allows and no more. Publishers would have to be nigh-on-braindead to license resale rights to Amazon, though. They’d be better off just releasing first sale rights to everybody altogether and letting the chips fall where they may than giving Amazon more power to lock customers into their world. In fact, I think they’d be better off doing that than what they’re doing now, even if they maintain the good sense not to license away the second hand market.

Wohlsen then quotes Bill Rosenblatt, who he describes as “a consultant and expert witness in digital content patent cases”:

“If Amazon is allowed to get away with doing resale transactions without compensating publishers, then what they can do is say, ‘hey authors, sign with us and we’ll give you a piece of the resale.’”

If Amazon is allowed to resell without compensating publishers, then that means buyers would have regained first sale rights. That would mean Amazon, or anybody else for that matter, wouldn’t be able to control the resale of these goods. You can’t just say “Kindle owners have first sale rights but Nook owners don’t.” Amazon could certainly cut writers in on the resale of their books on their site, but in this hypothetical, they’d be far from the only place selling second hand digital goods. As a,writer, if would definitely be something I’d listen to, though.

There is no circumstance where Amazon totally controls the resale market and doesn’t pay publishers. Either they license the content for resale, in which case publishers get paid, or they invoke first sale, publishers don’t get paid, but the real control and resale rights would belong to consumers. (Unless, of course, a court somewhere warps copyright law to create such a circumstance. Not exactly an unheard of occurrence.) Amazon might build a nice little business with used ebooks, but it would largely have to do so by offering buyers enough incentive to exert their first sale rights with Amazon. Hardly a dominating position.

“Buried in the patent is language spelling out that the technology Amazon intends to use will have the ability to limit the number of times a digital good could be resold or loaned out. Amazon could use that constraint to strike bargains with publishers and authors to cut them in on used digital sales, which doesn’t happen with used physical media.”

And would only happen here if it were a product of a licensing deal. If they invoke first sale, Amazon couldn’t uninvoke it later. They wouldn’t have the right to put any limits on resale. They could buy the license, then willingly retire it, but they couldn’t prohibit a buyer from selling it. If it were licensed for resale, however, Amazon could do just that, per terms of the licensing agreement. But again, publishers…resale licensing with Amazon…braindead stupid.

I do believe we need to return first sale rights of digital goods to consumers. I believe there will be a technological means developed that is simple enough to make this happen without unduly encouraging piracy. Even so, no matter what you do, somebody somewhere is gonna rip you off. Publishers are just gonna have to accept that reality. Taking away first sale rights devalues the product in a very real monetary sense to the buyer. That is simply bad business.

What Amazon’s patenting here sounds to me like an attempt to strengthen its walled garden. I’m not sure this method would hold up or work in an atmosphere where first sale rights are truly implemented by consumers. So it seems as though licensing resale from publishers is the point of this. But what publisher in their right mind would give Amazon this ability? On second thought, don’t answer that. Like with most things, some idiot(s) will.

Second Hand Blues: First Sale Rights and Used eBooks

That sound you just heard was the collective heads of everyone in the traditional mass media industry exploding as news of Amazon filing a patent for a process to resell digital goods spread. Many of them are having enough trouble keeping their heads above water in the current digital marketplace as it is. Now, suddenly, they might have to deal with competition from an area they thought was locked down, resale rights of customers. Oh shit.

Personally, I’m all for this development, although I would much rather someone other than Amazon be the one to push this possibly emerging market. However, the fact that they’re taking steps to be prepared for it again shows why they have essentially made fools of the traditional industry. They think ahead, they pay attention, they prepare and, most of all, their business model adds value for their customers instead of taking it away.

I’ve long been a proponent of an aftermarket for digital goods. I believe it’s lack is the one key flaw in the ebook market. In fact, I’ve started to develop a little theory about this. Far from being just simply a loss of value for consumers, I’m starting to get behind the notion that the lack of an aftermarket is a primary cause of three of the most troublesome issues with ebooks and other digital media; piracy, discoverability and the downward pressure on prices.

1. Piracy

I usually take issue with even defining the activity of file sharing, even obviously infringing file sharing, as piracy. I just don’t think it is. I also think it clouds the issue by broadening the scope of conduct corporations would like to monetize into a individual crime, which hurts efforts to combat actual, destructive commercial-scale piracy. But for the sake of brevity, I’m just going to use the term piracy here. It’s easier to type than “possibly infringing and much maligned but potentially fair use protected file sharing,” which would be a far more accurate description of the conduct to which the industry objects.

The biggest joke of all from the anti-piracy brigade is the assumption that every download is a full price lost sale, complete with lost royalties for the creator. That’s obviously a skyscraper-high pile of horseshit I’m not going to waste time refuting. But let’s say, for the sake of argument, that it’s somewhat true, who’s to say that lost sale would have even been one that affected the industry or artists at all? It’s easy to suggest that someone downloading an ebook wasn’t going to buy it anyway. But what if they were going to buy it, only a cheaper second hand version? Even if it was a lost sale, it wasn’t one that would have earned the industry a dime anyway. Or any royalties for the artists. Amazon routinely lists used alternatives to new versions right on the product page, always significantly cheaper. Is it really a stretch to think that people who choose downloading for free over buying full price wouldn’t also choose to buy cheaper used than new? Even if every download were a lost sale, if those sales were going to be of the cheaper, used variety, the industry and artists lose nothing. And it’s perfectly legal under the first sale part of copyright.

Ebooks circumvent first sale by being sold as a license for use. When that happens, customers lose the ability to resell those goods (among other things). It’s why I can’t just sell the ebook I bought last week from Amazon to somebody else on eBay. But the book publishing industry has long existed side by side with its used counterpart. There has always been a place to buy books at a significantly discounted price. When eBooks took off, however, there was a vacuum left where that discounted market used to be. Isn’t it possible that piracy grew to fill this very gap that the loss of first sale left in the digitized side of the market? We went from a system where you could get books full price new, heavily discounted used, or free from libraries to a system where it was full price new, extremely limited and inconvenient from libraries or free through piracy. The industry, through the means it chose to sell ebooks, removed the discounted option completely, hamstrung the legal free option and then loudly wondered why people pirated.

I think a lot about rights, I am a writer, after all, and I spend a fair amount of time complaining about rights grabs from publishers. But it just dawned on me that I’ve essentially missed the biggest rights grab of all. The way ebooks are sold protects publishers under copyright law, protects authors under copyright law (although I would argue in too ancillary of a way through publishers but that’s for another day) and takes away almost all the rights of consumers under copyright law. It is pretty egregious when you look at it. The first theft was committed when publishers agreed to the licensing scheme and took away customer rights. Then they turned right around, started pointing fingers and yelling, “Thief!”

Removing first sale rights created a vacuum in the ebook market and piracy was what grew in its place. Nature does, indeed, abhor a vacuum.

2. Discoverability

Here’s another thought that’s been kicking around in my head: what if, instead of causing the drop in sales, piracy actually prevented that drop from being significantly worse? Think about it. When digital music hit the scene, that industry panicked, fought the rudimentary early age file sharing spots like Napster and Limewire tooth and nail, right down to suing their own damn customers. At that point, broadband was slower, not nearly as widespread, and most people didn’t know how or have the capacity to download sometimes large music files. As first sale rights fell away, the secondary markets thinned, discovery was hampered and sales dropped precipitously. When ebooks hit publishing, there were well-established file sharing networks in place, broadband was much faster and more ubiquitous. The discovery hit from loss of first sale was mitigated somewhat by piracy and the drop in sales was much lower. Book publishing, quite possibly, was somewhat protected from itself by the very pirates it so loves to demonize.

Look at it this way, when I buy a print book, I can go sell it to someone else. They in turn, can sell it again, the next owner can sell it, then that owner could donate it to the library where it can be checked out over and over again. That one book could pass through numerous hands, all legal and all based on one sale, the first sale, from which publishers and creators reap their proceeds. The rest of that book’s lifespan constitutes exposure, or discovery, if you prefer. Now, if I buy an ebook, other than a limited ability to share with a few people under specific conditions, the life span of that ebook essentially dies immediately after the first sale. All of that exposure and discovery that was present with print books sold with first sale rights is washed away. And again, the industry is perplexed about why people aren’t finding new books as easily as in the past. That kind of thing happens when you destroy the primary mechanisms of discovery by swiping rights from customers.

I’ve seen numerous polls that suggest bookstores are the number one place for discovery of new works but I’ve never seen one differentiate between what kind of bookstores they’re talking about. Is it more likely you’ll try out new authors in Barnes & Noble where you’re paying $10-25 or so on average per book, or in a used bookstore where hardcovers are $2 and paperbacks can be had for 50 cents? I suspect discovery has been done far more at bookstores selling heavily discounted used books (and libraries, where it’s free) than at stores selling only higher priced new books.

Everybody seems to be wondering why online book discovery is struggling so much. Could it be because publishers have hamstrung libraries and blocked the development of discounted used ebook stores by eliminating consumer rights to resale, places where discovery is far more likely to happen than full price, brand new alternatives? Nah, couldn’t be that, must be the pirates, you know, the only place actually emulating the primary means where book discovery was done in the past.

3. Downward Price Pressure

Taking away first sale rights from consumers does one other key thing, it takes away the customer’s ownership stake in the product. If you can resell something, that has value, and when you buy a print book, it retains that value because of first sale rights. But with ebooks, the monetary value drops to zero immediately after you pay for it. Don’t think for a second people don’t understand this basic fact. The loss of an ownership stake, and the instant elimination of any monetary value necessarily degrades a product in the customer’s eyes. By swiping first sale rights, publishers have devalued their own products. It’s the reason why so many people complain so loudly about ebooks priced anywhere near what print versions cost. We’re not stupid out here, we know damn well you’re selling us a product that doesn’t have anywhere near the tangible value of a print book, and that has nothing at all to do with the quality of the book. I can’t sell it and its uses are limited. I possess significantly fewer rights with ebooks. Consequently, it makes no sense to pay print prices for way-less-than-print value.

Then, there’s this. With the aftermarket for ebooks nonexistent, wiping out a highly discounted layer of sales, it created a huge gap between the prices of trad pubbed ebooks and indie books. That, in turn, created a situation where indie books could be priced much cheaper and attract significant sales through super-low prices alone. That, then, set off a race to the bottom fight for those sales, culminating in 99 cent novels, and generally increasing the downward pressure put on all ebook prices. But consider, if there were a used layer there where trad pubbed ebooks could have been picked up for $2-3 or so, the massive gap in prices between indie and trad books never would have happened, the severe price advantage wouldn’t have sparked the uptick in sales that set off the race to the bottom. Indie authors would have been forced to compete on factors beyond simply super-low prices, and the downward pressure they’re experiencing now declines appreciably. Also, if those same customers now bitching about $15 ebooks knew that could get a few bucks back on them through resale, they wouldn’t be so likely to complain about price. They’d retain their ownership stake, and very likely, not balk at paying a few dollars more. There’s two key elements right there driving prices down that go away if customers hadn’t had their first sale rights taken from them.

First sale rights are hugely important. I’m of the mind that swiping them from consumers as ebooks have is responsible for most of the biggest problems in a growing industry segment. An aftermarket isn’t something to be afraid of, it aids discovery, maintains value in the product chain and gives your customers not just a right to resell, but an actual ownership stake in the product, albeit a small one, relatively. It now becomes in their best interest to maintain the value of ebooks because they have some skin in the game. Take them away, and it seriously damages discoverability, drives prices down as the reality of lost value sinks in, and it drives possible customers to alternatives like piracy.

Whatever the technical difficulties in creating a digital goods aftermarket, or giving consumers back the first sale rights that have been swiped by the ebook licensing scheme, the consequences will be far less severe than continuing to treat customers as naive dullards who don’t mind being gouged by higher prices for a lesser product. There’s a good reason first sale exists as part of copyright law, free markets don’t work when one party has too much control over economic activity. If we don’t change course soon, the ebook market will find out exactly how dysfunctional things can get when the playing field gets unfairly slanted. Customers have rights, too, and it’s high time publishing remembers that.

Bookish: New publisher-backed retail site is game-chan…eh, whatever

I was checking out Bookish today, the new Big Six backed trojan horse, supposed to look like some kinda Goodreads/retail store hybrid thing but really is a not-so-subtle attempt to build their own little walled garden only sans the hardware. Yeah, I’m not a fan, what can I say?

Actually, I don’t really see too much to get worked up about anyway. There’s nothing really new here, and it’s pretty clearly an attempt to regain gatekeeper control by imitating various popular book-related internet properties they could have innovated a decade or so ago if they’d have pulled their collective heads from their assess even temporarily. Late to the party doesn’t usually fly. That and this is traditional publishing trying to be forward-thinking, after all. So forward that the debut was about two years after it was supposed to be. I’m not encouraged by the vision or support behind this if things don’t go instantly great and end up even the slightest bit challenging.

The DRM insistance sucks but not at all unexpected. We’re still quite a ways from the biggest of publishers’ conglomerate masters getting the memo that they’re cutting their own throats with it. The part of the terms of service saying they own all rights to any user generated content is troubling, but again, publishers are behind this. Never met a right they didn’t try to grab. There appears to be a pretty stark “no refunds” policy on ebooks, too, enforceable after download, which, I guess, means store-credit-only if something’s messed up? Of course, shit-out-of-luck is a distinct customer service possibility here, too. Wouldn’t surprise me. By comparison, Amazon gives you seven days to “return” an ebook for a no-questions-asked refund. Not exactly a compelling reason to buy through Bookish rather than Amazon.

I would typically link to their site here, but apparently I would be violating their terms of use if I did so, it containing a provision allowing them to block your link if you disparage them. Lord knows I wouldn’t want to run afoul of their terms. So, good job, guys! Here’s at least one less link to you in the world.

At the end of the day, Bookish to me loses points precisely for what it’s trying to do, be a limiting factor in book shopping, and serve in a gatekeeper type capacity. It’s not so much what’s seen or recommended on their site, it’s what’s excluded that’s the problem. It’s allowing material in from sources which meet some sort of standard of approval, apparently dependent entirely on the publisher. It’ll be interesting to see if this ends up with the big boys getting all the prime, algorithm-tweaking real estate. There doesn’t really seem to be much in the way of involvement for authors, either. But, I’m willing to give most things the benefit of the doubt, so I clicked on the “I’m an author” link in their FAQ. Here’s what I got:

How can I have my book(s) added to Bookish?

Authors should ask their publishers to confirm that their respective titles are in the data feeds provided to Bookish.

That’s it? I’m an author. I’m interested in becoming involved with this innovative new method of doing the same thing other people are doing just more self-servingly and the only acknowledgement or words of advice you have for me is “go ask your publisher”? Is it me, or is the tone of their suggestion reminiscient of when you were a kid and annoyed your mother with some question she didn’t care about to the point she’d say, “go ask your father?” Seems a bit dismissive and condescending. I also find myself wondering at what point the lawyers took out the “If you’re a self-published author, go fuck yourself!” line that I’m pretty sure was in the first draft.

It’s not a bad thing for publishers to try to get some sort of more direct retail channel. But they can’t even get all the big players to back it. Hell, Apple talked them all into breaking antitrust law together, but something that could actually be a practical benefit to the industry if done right? No way! This should have been done years ago. Now, it’s just chasing, piggy-backing on other people’s hardware, yet still trying to build that mystical walled garden through DRM. Authors are pretty obviously an afterthought, and they certainly aren’t treated as any kind of business equals, more like underlings to their publisher masters. I’ll withhold judgement on whether this is useful to readers until we actually hear from some, but I’m not optimistic given what I see so far. If I had to guess, Bookish will err too far toward crass commercialism over genuinely social interactions with readers. Basically, I’m seeing a site that’s talking at readers, not with them, and that’s going to be its biggest problem.

Data Overload: Reader behavior data lacking in crucial context

I just read this piece on NPR about whether the data collected on reader behavior from ereaders is useful to writers. My gut reaction is, “nope,” but upon further reflection, I can see some circumstances under which some data along those lines could be of use. It’s not a simple, black or white question, however. It all depends on who has the data, and who’s using it and how they overcome the problem of lacking proper context.

I can easily envision a circumstance where a publisher says to a writer, “Our ereader data suggests 63% of your readers were more engaged in the portions of your last book where the hero fought werewolves. We’d like your next book to include more werewolves.” That’s not appreciably different than it is now, only with more data that appears to reinforce their beliefs. Publishing has always been an industry that, when success strikes, beats every ounce of that success into the ground. Fifty shades of erotic romance, anyone? If werewolves are showing signs of being the hot new thing, bring on the werewolves!

But is that interpretation of the data correct? Were those readers more engaged because of the werewolves or because it was a high-tension, exciting sequence that just happened to involve werewolves? That’s a pretty important distinction. The problem is, we can’t say without more data to properly explain this data.

Here’s a point made by author Scott Turow that raises a similar concern in mind:

“I would love to know if 35 percent of my readers were quitting after the first two chapters because that frankly strikes me as, sometimes, a problem I could fix.”

Possibly. But what if that 35% is industry-standard for readers dropping books after the first few chapters? How do we know? I know my reading habits often have me starting books, putting them down for other books, sometimes coming back later, sometimes not. There’s no rhyme or reason related to quality for it, either. Some of my favorite books were started three or four times before I finally followed through. And I’ve read some total tripe cover to cover.

We need a whole lot more information before making any creative decisions based on this. What if we come to discover that 35% is actually better than average? What if 40-45% turns out to be the figure? Would Turow no longer have a problem to fix? He’d still have a third of his readers not getting past chapter two, but he’d also be outperforming the industry. What if we discover this having similarities to baseball, where failing 7 times out of 10 makes you an All Star? We are lacking the frame of reference to make useful decisions based on this data. Finding answers from data lacking adequate context is like reading tea leaves or interpeting ancient religious texts; anybody can do it and find a justification to point to as evidence, even if another person can credibly interpret the proofs you site the exact opposite way.

Turow also said this:

“Would I love to hitch the equivalent of a polygraph to my readers and know how they are responding word by word? That would be quite interesting.”

Frightening might be another word for it. Hell, I sense a dystopian novel where corporations have hitched everyone to a giant monitoring device to record their every impulse and give them back only products that serve their immediate desires, sort of a permanent cultural feedback loop. I don’t see how that much data is even useful. Writers, generally speaking, have varying degrees of OCD. I can easily see the hypochondriac impulse taking over, and some writers getting obsessively lost trying to make sense of this mass of often conflicting information.

He does make a cogent point here, from a publisher’s point of view:

“Why should we publish this book if 11 readers out of 12 can’t make it past page 36?”

It’s hard to argue that. Publishers need to make money to survive. So do writers but on a different scale. If data suggests a book isn’t attracting an audience sizable enough to support publisher overhead, then why should they publish? From the other side, if a book is not showing scale that befits a relationship with a publisher, maybe that’s a way for writers to help determine if a work is better served as an independent release. After all, the term “hybrid authors” is all the rage these days. You have to choose your publishing approach somehow.

But again, this only works if the data means what we think it means. Besides, there’s also the paradox of the fact that the book has to be released in order to collect reader data on it. So, at best, unless we’re talking about turning books into software and releasing beta versions we fix after getting customer feedback, this ereader data is only really useful in a predictive sense for future work. Which means that all we’ve done is pile a lot more data into a decision we’re already making based on an already-existing pile of considerations today. Will it improve end results? Maybe, maybe not. But what it will do is provide justifications to make the initial decision more defensible, regardless of outcome. I’m not certain that’s a good thing because it has the distinct potential to provide pseudo-evidentiary cover for making bad calls on whether or not to publish.

Books will still succeed despite data that suggested beforehand that they wouldn’t. And books will still fail despite having all the indicators of a sure thing. This data is nice, but there are numerous factors at work in a successful novel, reader behavior while reading is a small part of that I can’t definitively say holds much significance. I can’t say it doesn’t, either. We just don’t have enough data. In the future, we’ll fix that, I’m sure, and be awash in all the facts, figures and statistics we can stand on reader behavior. But we’ll still be lacking the context. Without that, I’m not convinced we’ll ever be able to interpret this information properly. Short of Turow’s all-encompassing polygraph or some piece of future tech that reads minds, that context isn’t readily accessible and likely never will be.

More and accurate data is always a good thing, but who wields it and how is crucial. I have a feeling that this will turn out to be little more than echo chamber material. Anyone making an argument will be able to find the numbers somewhere in the increasingly vast data pool to support it, no matter how outlandish.

Will I use this data for something, if available? Absolutely. I can totally see its value from a marketing standpoint. Will I change a character, story or rewrite portions of work based on this information? Absolutely not. I have little confidence that any of this data means what I think it means. I have even less confidence it means what other people think it means. If it only serves to reinforce already existing opinions, then it brings little of value to the table. Maybe I can glean a way to sell more books with this data, and that’s worth a shot, but changing the actual work in response to it is a bridge too far.

Editors Redux

A while back, I wrote this. Needless to say, I pissed off a few editors, some so severely that I began to wonder if they missed my point. Hey, maybe I needed an editor to help me make it more clear to editors why I think they’re overrated and, far too often, a detriment to the writer rather than a help. That would be kind of ironic, maybe, if anyone actually understood what irony means.

Anyway, I let it drop after that as, essentially, my point was that editors aren’t higher on the literary food chain than writers and, given the new realities taking hold, are little more than a supplemental contractor, as it were, serving at the writer’s discretion. Yet still, nearly every day, I see the same old arguments made. Writers can’t produce publishable work without editors. You need an editor. Editors are essential. Yada, yada, yada.

Editors are a tool at the writer’s disposal, one of many. Depending on the type and skill level of the editor in question, the trick is figuring out if they’re a tool that can help finish the job well, or an extraneous tool that seems shiny but ultimately is little more than one of those cheaply made pieces of junk you find in the “As Seen On TV” aisle that doesn’t quite live up to the game-changing hype on the infomercial.

Anyway, for clarity’s sake, I decided to revisit my point.

1. Most editors suck at their jobs

Most editors didn’t really appreciate my observations on this. There are so many different kinds of editors, and different jobs within publishing that carry the word “editor” in their title. It’s become a catch-all, pseudo-management title used more often to give an employee an air of higher standing without actually having any of said standing. In book publishing, there’s acquistion editors, copy editors, line editors, content editors, etc, etc. The magazine/newspaper world’s even worse, with offices in many cases employing more people with editor after their names than writers. One of the things I said in my original piece was that most editors are simply people who are wannabe writers who are either failures at it or lack the courage to be the creator. It’s always easier to manipulate the work of others than create it in the first place. This doesn’t mean that a good editor can’t add value, they can. It means there are a lot more mediocre-to-bad editors out there than good ones. I stand by this point completely.

Writers almost always exist in the grey area of uncertainty called self employment. Editors, on the other hand, usually collect a regular paycheck (modern publisher downsizing is changing this but it still holds as a generalization). Do you really want someone who chose the illusion of job security that comes with a regular paycheck over the risk of chasing their dreams dicking around with your attempt to chase your dreams? Again, this isn’t all editors, but it’s more of them than not. Keep in mind, as well, if your editor is one of these people, their motivation lies necessarily on the side of making your work fit the standards of the publisher who’s paying them rather than making your work the best it can be in a vacuum. Sometimes, those goals dovetail nicely. More often than not, however, they don’t.

This isn’t a blanket indictment against editors, it’s their job. They work for the publisher. They’re first order of business is necessarily serving the needs of the entity paying their bills. This is really a question for writers to answer. Do you want your work to conform to a publisher’s standards or to your own? The notion that these two ends always coincide is a fairy tale. In the old traditional market, all the sacrifice was on the writer’s shoulders simply because we had no leverage otherwise. It really and truly was my way or the highway at its root.

I’ve done my share of commercial painting over the years. It’s a nice skill to have and I’ve paid my bills through some lean years with it. The biggest trouble I had was contractors who’s motivations differed from mine. Contractors want to be max profitable above all else. I wanted to produce the best quality job for the person buying the house. Occasionally, this led to conflict when the contractor advocated something half-assed to support their profitability. Publishers are like contractors, editors either conform to their standards and demands or they’ll be looking for work elsewhere. I believe it’s crucial for writers to understand these dynamics. It’s pretty important to know if the editor who’s tinkering with your work is serving two masters. In those cases, when push comes to shove, the master with the fatter wallet wins almost every time.

Now, however, independent publishing has changed things a bit. Writers are the ones cutting the check now. Yet I still see editors with a “I know best” attitude, behaving as if the dynamic hasn’t shifted. The most important thing I said in my previous piece is that the editor works for you now. Listen to them, certainly, otherwise you’re wasting your money, but the ultimate decisions rest solely with you. You are in charge. I wonder if this isn’t why some editors were unhappy with my opinions. In the old traditional mechanism, editors were higher on the ladder than writers. Nobody likes to feel their skills are being maginalized, or declining in influence or authority. I feel bad but editors never should have gotten higher than writers in the first place. Editing is a supplemental activity to (theoretically) benefit the writer. The only reason that structure happened was so publishers could marginalize the importance of writers (and their ultimate compensation, let’s not forget that). Editors became what they did because publishers willfully used them to add a layer between creator and market that only they could successfully navigate, and to infantalize writers so they’d be less likely to rebel against a system that earns all its revenue on your back but only pays out a relative pittance in return. That strategy of infantilization has worked so spectacularly well that writers, en mass, have essentially self-imposed that structure. I still see good, talented, independent writers touting the value of these obstacles willingly put in their way by publishers, like agents and editors. Stockholm syndrome at its finest.

2. All editors aren’t awful

My rhetoric against editors in the original piece was over the top. I admitted as much in the article. Every editor doesn’t suck at their job. Most of them do, though. It’s crucial to find one who doesn’t, and that largely depends on what specific skills they possess and how they choose to wield them. A good copy editor is worth every penny. By the way, I define copyeditor as line by line, typo and grammar editor. This is painstaking, tedious work. I suspect a big part of the reason writers have willfully gone along with the editor fallacy is precisely because copy editing sucks and we just don’t want to be responsible for it. Where do you suppose the notion of “I just wanna write” comes from? Writers who only want to do the fun, easy parts and dump the difficult actual work on someone else, that’s where. Now I’m going to do what I neglected to do but should have in the original piece, I’m going to lay the wood to writers.

If you’re a writer who subscribes to the above-mentioned theory, you are lazy. I just wanna collect royalty checks as a super best selling author. Someone else can handle the actual writing, I just want to cash those fat checks. That’s the same as saying “I just wanna write” while engaged in a business atmosphere. If you truly just want to write, there’s nothing wrong with that. It makes you a hobbyist, but that’s fine. But far too many writers saying this are actively seeking publishers, or actively self publishing. You can’t behave in a businesslike way but pick and choose to do only the parts you think are fun. To begin with, that attitude puts you at a severe disadvantage in dealing with people committed to the actual business and they will screw you every time on the contractual end given the opportunity. I’m pretty sure their mouths get to watering whenever a writer walks in saying “I don’t want to worry my pretty little head with actual complex professional business issues, I just wanna write!” If you don’t want to deal with the actual business end, then do everybody a favor and get the hell out of the business. You’re poisoning the waters for everybody else. By willfully signing over all rights, agreeing to onerous non-competes, accepting pittance royalties with little or no accountability to back those up and basically abdicating any and all responsibility for the business side of publishing, you’re helping establish standards that those of us who do actually care about the business side have to fight through every day just to try and get a remotely equitable contract out of a publisher. Everything worth doing in life comes with a heaping helping of things you don’t want to do. Suck it up, it’s part of the program. By not doing so, you’ve opened the door to publisher exploitation of writers wide open. The “I just wanna write” attitude has done more to infantalize writers than all the actions of all the publishers in the world combined. It’s like with most things, it can only screw us over so long as we allow it to.

Let’s say publishers are vampires. When you, sitting on your cushy little couch, utter the phrase, “I just wanna write,” you’re inviting the blood sucking parasite inside. More often than not, by the end of the evening, the vampire strolls away satiated and you’re left a pale-white, dessicated husk drained to the bone. Too strong a metaphor? Depends on who you ask.

3. But unedited work is awful

Yes it is. But here’s the thing, editing is a task. You don’t need a person with a title for it. Like the “I just wanna write” notion, “writers can’t edit their own work” is another dangerous and inherently lazy attitude to hold. Of course you can edit your own work, you wrote it for Christ sake! It’s like saying a master carpenter can build a chest of drawers but he shouldn’t sand or finish it. “Carpenters can’t paint their own work.” Doesn’t that sound absurd?

Woodworking and painting are simply learned skills that are a means to an end, in this case, a sweet new dresser. Writing and editing are learned skills that are a means to an end, a great novel for instance. No different. Are you going to tell the chef that he’s great at preparing the meal, but the table presentation should be left to someone else? I didn’t think so.

The key here, however, is that the carpenter knows going in that the finish for his chest is a crucial part of the job. The chef understands that successfully plating the meal is a crucial part of the job. Therefore, they learn how to do those things and do them well. Writers, on the other hand, by being told “I just wanna write” is okay, and “writers can’t edit their own work” drummed into us like Moses carried it down from the mountain, don’t even try. There is actually truth in saying writers can’t edit their own work today because we’ve bred generations of writers who never bothered to learn how. It’s a crucial skill that’s part of the job and we, on the whole, ignore it. Writers became unable to edit our own work because the industry actively minimalizing our skills so they could make more money told us so. They also, not coincidentally, had a ready solution of people who could take care of that for us so we could stop worrying our pretty little heads and just write. They’re called editors.

I am not, repeat not advocating that writers just throw unedited stuff out there. Someone has to do it. I’ve already mentioned that a good copy editor is well worth the expense, with all the emphasis on good. What I’m saying is writers not only can but should learn to edit their own work. It’s not rocket science. It’s a relatively easily learned skill. By comparison, it’s a helluva lot easier to learn good editing skills than to learn good writing. It’s not often fun, it can be tedious if done right, but it’s an essential part of the job. Learn it. Now.

Self-edited work is not unedited work. This pisses me off more than almost anything when I see these terms used interchangeably. As a writer, I find it personally offensive. Why is my edit somehow less valuable than someone else’s? Where is the mystical line where the person with the skills to create something in the first place magically loses all capability to refine it?

My opinion is that it’s always better for multiple sets of eyes to look something over. It’s always preferable to see points of view other than your own. But the traditional editor/writer dynamic gives too much voice to the editor. Again, what I’m advocating here isn’t that writers should just say, “Fuck you, I’m going to do whatever the hell I want!” Well, sometimes, maybe. But for the most part, I’m saying we need to look at conditions and re-evaluate the role and importance of editors. That can’t be done if writers don’t also pick up the slack and re-learn the tasks we willfully abdicated long ago.

In the traditional setup, writers were essentially selling books to editors. We weren’t selling them to readers. Editors, in turn, were selling those books to the publishers who employed them. Again, not readers. Hell, even publishers were selling those books to distributors or chain stores, not readers. The only people actually selling books to readers were at the retail level. Should it surprise anyone that it was a retail company (Amazon) that rose up and finally kicked publishing in the balls? Today, it’s more important than ever to sell to readers. Nobody in the old chain knows how to do that, including writers and editors. Is it preferable, when selling to readers, to seek content feedback from actual readers or editors, who, like writers, have been kept several degrees of separation from readers for the publisher’s advantage? That’s rhetorical. The answer’s pretty obvious.

So there it is in a nutshell: editors suck, writers are lazy, we’ve both been made that way by publishers parasitically exploiting us for profit and we’re all screwed anyway because none of us knows the first thing about selling to readers. Wait, was that my point? Aw shit, maybe I do need an editor.

Editors Note: No I don’t.

Published in: on February 1, 2013 at 8:10 am  Leave a Comment  
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The Benefits of Globalization Don’t Apply to the Little People

The U.S. Supreme Court is set to rule on a case that has profound implications for the concept of ownership, (See SCOTUS blog here and read up. It’s fascinating) and could conceivably eliminate the last lingering vestiges of the notion that copyright law has any limits.  If the court rules the wrong way on this, copyright ceases to have any pretense of societal good. And why is it that we’re faced with the possibility from SCOTUS? To defend a publishers’ right to segment the world into territories.

In the past, I’ve argued that the idea of territoriality is already outdated and should be done away with. This case illustrates pretty clearly why that’s the case. Given the technological realities we have today, there is simply no easy way to defend this practice in statute that doesn’t have the unintended consequence of severely undermining first sale, fair use and ownership and resale rights for nearly everything we buy. The benefit to society for allowing territoriality to stand is negligible. In fact, it’s the consequences of doing so that are severe and destructive.

First, let’s look at the publisher, John Wiley & Sons. They are textbook publishers who, as many do, routinely use the concept of territoriality to both exploit poorer markets and maintain the ability to overcharge more affluent ones. The key issue in this case is that an individual, Thai national Supap Kirtsaeng, purchased textbooks sold by Wiley at lower prices in Thailand, brought them to the American market and sold them on eBay to help pay for his education at USC, where the exact same textbooks are priced much, much higher. My first response to this was, “good for him!” This guy identified a seam in the sales channels and exploited the price variance for the same product in different markets to make a buck. That’s market-based globalized free enterprise at its best.

But Wiley was having none of it, suing (in my opinion, inexplicably) for copyright infringement. The guy in question didn’t copy anything. He legally purchased said textbooks at full price offered by the publisher, then used his first sale rights to turn around and sell them for whatever the hell he wanted. There’s no copyright infringement here at all. (Note: I’m speaking in practical terms. Yes, I’m aware that there are portions of copyright law dealing with importation of foreign goods, but those parts were written long before globalization and free trade took hold, before the internet was even a thing and back when importation was a little more complicated than a few mouse clicks and a week’s wait for shipping. Those rules have about as much relevance to modern life as the use of grindstones to make bread). But the 2nd District Court disagreed, invalidating his defense through first sale, declaring his actions as infringing and fining him a substantial amount of money. The key problem lies not just in the decision, which I believe is catastrophically wrongheaded, but in the justification used. The court ruled that first sale rights don’t apply to any goods manufactured outside of the U.S.

Apparently, the judges of the 2nd District missed the memo about the new global economy we’re all supposed to be giddy about. They seem to have not noticed American corporations offshoring jobs and manufacturing at economy-gutting levels to save on labor costs and such. They’ve obviously never set foot in a Walmart or any other retail outlet and taken a few minutes to check the “made in” labels or they would have realized that a plurality of goods we buy every day aren’t manufactured in this country. If first sale doesn’t apply, then this court just swiped ownership rights to the majority of our possessions.

To make matters worse, how many foreign manufactured components do you think are present in our homes and cars? If I own a home that has a central heating system installed that was put together from any amount of foreign made components, do I even have the right to sell my home without first buying licenses for every non-U.S. element it contains? What if I want to sell my home complete with appliances, also made from foreign manufactured components? Do I need separate licenses for my refrigerator, washer, dryer, dish washer, etc? What will the costs of acquiring these licenses do to the overall value of my home. If you said “plummet” you hit the jackpot.

I can no longer legally even sell the smartphone I’m currently typing on. And what about the licenses HTC acquired for the plethora of foreign-made components that make up the phone itself? Does those licenses transfer? Is it enough to get resale permission from HTC or do I also have to get permission from every component manufacturer too? The same applies to cars. Can an ok from Toyota allow me to sell my car, or do I also need an okay from the stereo manufacturer, the maker of the chips in the car’s computer, and whoever made the tires, brake pads, oil filter and anything else in the vehicle that wasn’t American made. What does this do the value of your car? Again, “plummet” is the correct answer.

Yet, this value loss is totally on the consumer side. When the resale market gets gutshot in this way, there is no logical reason to expect car makers to do anything except up their prices. Really, all they have to do is refuse permission for resale and the used car market ends instantly. No more competition on that front.

There’s two key problems I see here. One, this kind of ruling creates a massive incentive for businesses to continue and actually speed up offshoring jobs and manufacturing. If first sale doesn’t apply to foreign goods, companies that trade in foreign made goods will control not only the primary market, but any secondary markets would only be allowed to exist on their terms at their discretion. The entire point of first sale was to prevent this very thing.

In a global economy where much if not most of what we buy isn’t made in America, how long would it be before companies still producing goods in the U.S. argue that first sale prevents them from competing and must be done away with here as well? I put the over/under on three hours.

Then there’s the legal illogic of somehow claiming one part of copyright doesn’t apply to foreign goods (first sale) yet other parts will (fair use). Supporters of Wiley have almost all claimed that the above concerns I’ve mentioned are scare tactics because consumers will retain fair use rights to defend their actions. But why should fair use be any more applicable to foreign goods than first sale? This is a flat-out lie by those who want Wiley to win. If the District Court decision on first sale stands, it’ll be roughly a half an hour before someone tries to invalidate fair use for foreign goods as well. And they’ll win because they’re right, logically and legally. If first sale doesn’t apply, then neither does fair use.

Get it yet? Think for a second, how many people in this country just bought, wrapped up and gave away foreign made goods as presents this past Christmas. If this ruling stands, every one of those gifts was an incident of infringement. I’m pretty sure we just rang up a $100 trillion worth of infringement penalities last month. Don’t think businesses will try to exploit this fully? Take a look at how publishers have been extorting exorbitant fees from libraries on ebooks. First sale doesn’t apply to digital goods (I believe strongly that it absolutely should, by the way) and fair use rights for the same have been willfully undermined as a consequence, resulting in absurdly, indefensibly high prices. And these are goods made in this country supposedly subject to the fullness of copyright law. Take away even those limited protections, and I think we can all see where this is heading.

All of these possibilities only exist because the courts are trying to carve a legal protection out of copyright that allows publishers to gouge rich markets while also simultaneously charging more reasonable prices in poorer ones. We could all effectively lose our right to resell virtually anything because a publisher wants the law to protect them from their own pricing strategies.

We’ve all had “the benefits of globalization” crammed down our throats the past few decades, and this case puts the lie to those notions. Corporations will readily tell you how great the global economy is as they ship manufacturing to third world countries with no worker protections, minimum wage laws or safety standards, but here, a regular guy finds a way to profit from globalization, and those same corporations are screaming that hellfire, brimstone and economic ruin will descend upon us all if its allowed to stand. If the District Court decision is held, that will be a clear sign that globalization belongs only to corporations and the wealthy. They get all the benefits and profits, while we get all the sacrifices and consequences.

There are two big societal problems made worse by an upholding of Wiley’s case: offshoring jobs and the cost of higher education. I’ve already mentioned how this decision creates a massive financial incentive for businesses to stop trading in American made goods, making a serious problem exponentially worse. The cost of education is, in part, too high thanks to textbook publishers. Territoriality is one way in which they keep textbook prices in the American market artificially high. This decision would also make that problem significantly worse as well. Textbook makers already undermine resale value by routinely producing new editions with little or no substantive changes specifically to prevent students from selling their books for any tangible return. This decision provides a clear path for them to further erode consumer rights; simply print the books overseas and now students lose all rights to resell (or give away) those books at any price.

The potential damage to the public and the overall economy from upholding the District Court decision outweighs the damage done to publishers by striking down the infringement claim defending territoriality by so many levels that even considering it scares the hell out of me.

What better case can be made that copyright is irretrievably broken than this one? The District Court ruling essentially makes copyright unlimited in scope, with manufacturers retaining not only primary sale rights, but also grabbing total control of any secondary markets as well. Considering that expansion of copyright terms has essentially made copyright length infinite (Life of creator plus 70 years. It is certainly infinite for the creator as my copyright wouldn’t expire until several generations after I’ve been dead and buried. And that’s only presuming it doesn’t get expanded again, which only an outright fool would believe won’t happen when Mickey Mouse next approaches public domain) where exactly are the statutory limits on copyright that were the principle element of the protection in the first place?

If the possible consequences weren’t so severe–as in instantly stealing at least half of the value of the goods we’ve paid for, eliminating secondary resale markets, and extorting copyright monopoly rents with additional licenses on products we’ve already paid for, not to mention possibly gutting fair use which could well have serious deleterious effects on free speech–I’d say maybe a decision this inordinately stupid needs to happen so regular people can see clearly how distorted and unfair copyright law has actually become and demand much needed change. But then, I’m opposed to further destroying what little productive economy we have left to make a point about copyright. Unfortunately, our corporate leaders and government don’t seem to agree.

The only logical choice here is to strike down the copyright infringement defense of territoriality. The alternatives do a hell of a lot more damage. I wish I was more confident that SCOTUS will get it right. We can all dream, can’t we? Unless, of course, your dream includes an infringing appearance by a copyrighted character, in which case that nap’ll cost you $150,000.

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