A Lawyer's Perspective on Publishing, and on Fair Use

I confess that I take a somewhat geeky interest in matters of publishing law. But even if the law holds little allure for you, as a publisher you can't avoid legal questions. Every editor has to negotiate contracts, secure permissions, and make sure that manuscripts don't run afoul of libel or privacy laws. And writers need to pay attention to the same questions. So I was happy to learn that Mark Fowler, an experienced publishing lawyer who has also been an author, is now blogging about publishing-law issues at RightsofWriters.com. I have myself benefited from Mark's astute counsel (and unflappable demeanor) in the past, although he does not currently represent me or Bloomsbury Press. I recommend his site to editors, writers, agents, and anyone else who wants to understand some of the peculiar nuances of our business.

Last week Mark posted about the always confusing and often contested topic of "fair use"--the doctrine that permits one author to quote another's copyrighted material for purposes of comment, criticism, or scholarship. As he observes, it has been an unfortunate development in recent history that lawsuits or other aggressive moves by rights holders have discouraged some authors from using certain quotations, and in some cases has forced them to paraphrase or omit the texts that they're writing about. I agree with Mark that while authors need to be careful, they shouldn't be too diffident about relying on the principle of fair use. Many times I have quoted to authors some lines I have virtually memorized from the Chicago Manual of Style that I thumbed through constantly when I first started in publishing.

"Fair use is use that is fair--simply that....The right of fair use is a valuable one to scholarship, and it should not be allowed to decay through the failure of scholars to employ it boldly."

I was happy to see that these lines still appear (though slightly modified), in the new 16th Edition of the Manual. They still hold true.

 (Illustration: Lawyers by Honore Daumier, via Wikimedia Commons)

Arrrh! The E-Book Piracy Nightmare Scenario

Just yesterday my first Unanswered Question about the future of publishing was, Is pirating of books, which is now so easy to do, going to be an annoyance--i.e. a perpetual problem, but one that is not large enough seriously to affect the industry--or is it going to take a huge, crippling bite out of sales as it seems to have done in the music business? Right on cue, Sathnam Sanghera of the London Times has stepped in with an article that offers his own alarming answer, looking at how digital downloads have affected the music industry. Citing the Digital Music Report 2010, he writes that the industry

has been decimated. Even though legitimate digital sales have grown nearly ten-fold in the past five years, overall the music industry’s global sales have fallen 30 per cent over the same period. Illegal downloads still account for 95 per cent of music downloads worldwide.

I don't happen to believe that the music business is a perfect analogue for book publishing. For one thing, the experience of listening to a song from your iPod is he same as listening to it from a CD, but reading a book on your Kindle is not the same as reading a hardcover.  So I suspect printed books are going to remain a much bigger piece of the market than either CDs or vinyl did.  


I also think Sanghera's article conflates different approaches to "free" book content. He treats publishers deliberately giving away free samples to spur sales as if it were the same as illegal file sharing. Nonetheless, it's salutary to be reminded of just how cavalier consumers can be about paying for the sweat of an author's brow.  To go from the faceless statistics of the Digital Music Report to the anecdotal evidence of one candid ripoff artist, just read this eye-opening interview from The Millions with one file-sharer calling him- (or her) self The Real Caterpillar. 

In the past month, I have uploaded approximately 50 books to the torrent site where you contacted me. I am much less active then I once was. I used to scan many books, but in the past two years I have only done a few.

"Only" 50 books uploaded this month!

Caterpillar has a complicated morally self-justifying calculus by which he/she doesn't pirate new books by some authors, to "avoid causing noticeable financial harm to the author whose work I love enough to spend so much time working on getting a nice e-copy if I were to do so." But Caterpillar cheerfully acknowledges "it is clear that morally, the act of pirating a product is, in fact, the moral equivalent of stealing" while continuing to do so. 


It seems pretty likely most file-sharers don't even bother to think about the moral issues this much while they do their Blackbeard act on authors', and publishers', livelihoods.  Having read these two articles back to back today makes me feel that anyone who doesn't think piracy is going to be a really significant problem in the coming years is being willfully naive. 

(illustration by the great Howard Pyle, from Howard Pyle's Book of Pirates--copyright expired!)

Charles Dickens: Get Your Cotton Pickin' Hands Off My Copyright, Pardner

Why is protecting copyright important? Who can say it better than Charles Dickens, a colossally bestselling writer in his day whose works were shamelessly pirated in a developing country with scant respect for intellectual property: the United States.


Many of you are probably aware that Dickens's celebrated American tour of 1842 was prompted in no small part by his desire to make some money in the American market. His works were hugely popular here, but he earned not a nickel (or farthing) from their sale. By coming to the States he at least made some lucrative speaking fees. While he was here, he spoke out loudly in favor of an international copyright agreement--a topic that was not warmly received by his hosts. Then, as now, Americans considered themselves a specially moral nation; we really hate to have it pointed out when we don't live up to our ideals.

I spoke [Dickens wrote to a friend], as you know, of international copyright, at Boston; and I spoke of it again at Hartford. My friends were paralysed with wonder at such audacious daring. The notion that I, a man alone by himself, in America, should venture to suggest to the Americans that there was one point on which they were neither just to their own countrymen nor to us, actually struck the boldest dumb! Washington Irving, Prescott, Hoffman, Bryant, Halleck, Dana, Washington Allston -- every man who writes in this country is devoted to the question, and not one of them dares to raise his voice and complain of the atrocious state of the law. It is nothing that of all men living I am the greatest loser by it. It is nothing that I have a claim to speak and be heard. The wonder is that a breathing man can be found with temerity enough to suggest to the Americans the possibility of their having done wrong. I wish you could have seen the faces that I saw, down both sides of the table at Hartford, when I began to talk about Scott [Sir Walter, also hugely popular and widely bootlegged]...

I had no sooner made that second speech than such an outcry began (for the purpose of deterring me from doing the like in this city) as an Englishman can form no notion of. Anonymous letters; verbal dissuasions; newspaper attacks making Colt (a murderer who is attracting great attention here) an angel by comparison with me; assertions that I was no gentleman, but a mere mercenary scoundrel....

Dickens got as far west as St. Louis. But I was delighted to discover recently that, in the imagination of one screenwriter, he made it to Nevada. On a 1963 episode of the TV Western series Bonanza, Dickens read in Carson City--where he found the audience had his work memorized already--and in one remarkable scene, gave Hoss Cartwright an impassioned defense of intellectual property. 





Yes, that's Jonathan Harris--better known as Dr. Smith of Lost in Space--as the great novelist. You can see him read from Oliver Twist here. To judge by Mark Twain's review of Dickens reading in New York, Harris may be better at the job than the great man himself. 


Update: it is both ironic and probably inevitable that the YouTube clip of Dickens defending copyright has been removed because of copyright infringement! I recently saw it posted, however, on another YouTube page. Rather than give you another link that may go out of date, I suggest you search for the TV show under "Bonanza Charles Dickens" or the episode's title, "A Passion for Justice." 

(Hat tip to the excellent Charles Dickens Page for these quotations.)