Friday, May 13, 2005

Long-Term Goal: A Real Royalty System

There's a way out of the electronic rights mess. It's a little inconvenient for the most powerful players in the publishing industry, and it's downright burdensome for the smaller players unless we're all creative and flexible, and it cancels the benefits of new information technology if it's applied ham-handedly.

But the solution is at hand. It's called a comprehensive royalty system. The National Writers Union introduced a model called Publication Rights Clearinghouse. The Authors Guild and the American Society of Journalists and Authors followed with another, called the Authors Registry. Legal guru Lawrence Lessig has yet another concept, the Creative Commons.

In the 19th century we had a model for disseminating published material as efficiently as possible throughout our democracy. It's called the public library system.

In a more commercial context in the 20th century, with the advent of recording equipment, a model emerged in the music industry. It's called ASCAP (the American Society of Composers, Authors and Publishers). In some circles ASCAP has a bad rap and justifiably so. What we need today, in response to the marvelous toys that allow a home computer user to download an old magazine or newspaper article at the stroke of a key, is a kinder and gentler ASCAP, one that doesn't scorch the earth by seeking to charge every kind of user for "every bit and byte." We don't need the equivalent of the ASCAP field agents -- as hated by bar owners as the IRS -- policing what shouldn't be policed. We need something more like the broad canvassing of radio airplay of songs, so that appropriate redistributions of profits can be made from publishers to authors.

But you can't set new standards for a new era when only one side is talking and the other is just bullying, and that's what the consolidated class action copyright settlement is about. Or rather, sadly, in its preliminary form, not about. And that's why I've moved to vacate the preliminary settlement.

The database industry was built on piracy -- something that Antonin Scalia, Ruth Bader Ginsburg, and five other Supreme Court justices agreed on in the 2001 Tasini v. New York Times decision. Moreover, it was stealth piracy: the only way freelance writers like you even knew it was happening was if you stumbled across it yourselves, orif someone like me told you.

We can't let them get away with that. By "we" I mean not just independent writers, photographers, graphic artists, and other creators. I mean information professionals. I mean librarians. I mean users. I mean the public.

Contrary to the prophecies of new-tech mystics, many of whom are industry lackeys in disguise, the concept of copyright isn't withering away just because we have a World Wide Web. It just needs to be adapted to changing times. For in the end, if the only people or entities with intellectual property rights turn out to be giant corporations, rather than those of us with the inclination to give our stuff away in appropriate circumstances, how long do you think information will be "free"? (As if it's free today -- the entire national information infrastructure is built on the backbone of an Internet subsidized by taxpayers.)

Look, folks, no one here is saying that a newspaper stringer in Brazil, or a shlub who writes about pro wrestling, has the kind of clout in the publishing industry or in popular culture that hit songwriters had at the last turn of the century. Freelance writers do, however, have value, both commercial and societal value, that must not be undersold. "Casual" workers, without the benefits overhead of staff writers, help keep magazines and newspapers humming, and they know it. In a larger and very real sense, the future diversity and vitality of American culture is at stake.

ASCAP didn't spring forth whole from the forehead of Zeus ... or Victor Herbert. In took years, decades, or organizing, wrangling, even litigating. I was as eager as anyone to declare that this copyright case marked the effective end of that road. Unfortunately, though, the preliminary settlement doesn't cut it.

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