Friday, September 25, 2009

Do Freelance Writers Want a Little 'Moxie' -- Or a Lot of Moxie?

The blog commenter who uses the handle "Moxie" has sent in a new one. He (or she) is sincere, if misguided, and his off-target point is important enough to highlight in its own post.

Moxie writes:

There is a huge problem with merging the two cases [Google Books and Freelance], in that a major portion of [Freelance] concerns past infringement of works written prior to 2001. There is no way a royalty system can address that.

Only a small portion of the settlement money was payment for future use. And, as we know, all writers (even those who wish to accept payment for past infringement) were able to opt out & seek payment (via a royalty system or any other method of their choosing) for future use.

I understand that, as a writer of current works, you have a strong personal interest in a royalty system that extends into the future. I can even accept that you think you are looking out for anonymous folks around the world who never heard of the settlement (to the deteriment of the thousands of us who did). What I don't understand is why you continue to think that there is any legal and/or financial power in an almost-obsolete group of works published many years ago.

Please continue to fight your battle with the big fish (Google) and let us small fish in the Copyright case get the settlement funds that, if not for you, we already would have had.

In rebuttal to Moxie, let me say, first, that a royalty system can indeed come to grips with the revenues for reuse of articles past, present, and future. The Supreme Court said as much in 2001. Reed Elsevier v. Muchnick is about getting back on track the clear intent of the highest court in the land (as well as the Congressional intent of the Copyright Act of 1976). I do not believe we should give up on it simply because a more powerful, more heavily lawyered party -- which, surprise!, just happens to be the infringers rather than the infringed -- figured out how to turn Tasini v. Times inside-out to its advantage, with the collusion of some sellout named plaintiffs in an illegally structured class action settlement.

Will royalty system negotiations be easy? No. There's the whole opt-out/opt-in thing. And there's the question of whether the courts can do such a thing by themselves anyway, without Congressional copyright reform and antitrust waivers.

But a lot of public resources went into the creation of the Internet, and publishers sure didn't find their decades of systematic and willful piracy "too complex" to pull off. The technology, including micro-transaction data, is there. What's lacking is the will -- plus some consensus understanding that what freelance writers have produced, do produce, and will continue to produce has real value.

A good start would be understanding by the writers themselves. Too many of them must have listened to their publishers, or their wives, tell them that they're worthless, and internalized that message.

On that topic, the gold standard remains, in many respects, Nicholson Baker's October 18, 1994, New York Times op-ed essay, which was headlined "Infohighwaymen." You can read it at

I fell out of touch with Nick (who, of course, is a bestselling novelist) years ago and I do not represent that he agrees with me any more, across the board or even necessarily at all.

But in 1994 Nick Baker was one of the charter members and activists of "Operation Magazine Index," a campaign by the National Writers Union's San Francisco Bay Area Local, which was confronting electronic databases companies for ripping off our works. And he nailed it in this passage of his Times piece:

It’s interesting to speculate what the hit singles might be in this proposed arrangement [a royalty system loosely modeled after the music industry's ASCAP]. They wouldn’t necessarily be big cover stories in general interest magazines, since those already have a wide distribution.

Rather they might be obscure genealogical treatises, how-to tips for the beginning designer of flume rides or sell-your-satellite-dish-and-lease-it-back money-making schemes that appear in specialized periodicals with narrower newsstand penetration. Whoever the new database stars are, they deserve some dignified fraction of the money being charged for their prose.

Moxie seems sure that his own articles have little financial, let alone moral, value, and maybe he's right. But that view shouldn't bind the universe of freelancers unto eternity, at the very historical moment when new tech shows the potential for democratizing the publishing industry instead of only consolidating it.

Old reports in zoned editions of a newspaper on a small town's City Council meeting might have no ongoing market at all. Or they might have more of a market than you think. Digital archives profit on two premises. One is their integrity -- their comprehensiveness. On that basis they sell blanket subscriptions or online advertising, or simply give away content as a loss leader for brand-building in other fields.

The other for-profit premise, the one with which people are more familiar, is the per-download demand. That is only one part of the equation. And as Nicholson Baker noted, the long-term answers even there could surprise us.

Make no mistake: corporate reusers are either making money or planning to make money from our material. The only question is whether they get to keep all of it, then, now, and forevermore, as a perverse reward for having thumbed their noses at the Supreme Court; or whether they sit down and arrive at arrangements that are fair to everyone. Fair to the publishers themselves, of course, for the value added by their first-print publication. Fair to writers for the collectively steady, if individually sporadic, reuse of their works. And fair to a public that wants the information spigot turned on, with a level playing field of access and without price-gouging.

As is suggested by my letter to the attorney general -- which points out commonalities in both the principles and the logistics of the Google Books settlement and Reed Elsevier v. Muchnick -- the solutions will require imagination.

They will also require moxie. In the case of this particular blog reader, sadly, that's moxie with a small "m."


Anonymous Moxie with a BIG M said...

What you seem to keep forgetting is that, in the case of the Freelance agreement, it covers only those works that were infringed on the internet prior to 2001. After the Tasini ruling in 2001, most (if not all) freelance contracts have included a clause that permits electronic redistribution. Whether or not the writer gets additional payment is covered in contracts that already exist.
Do you seriously think that quashing a settlement that governs pre-2001 infringements will somehow cause all these post-2001 contracts to be converted into a royalty system?

11:04 AM  
Blogger Irv Muchnick said...

Quashing a bad settlement that governs pre-2001 infringements would have the effect of ... quashing a bad settlement that governs pre-2001 infringements. And it would prevent the imposition of a de facto, and almost impossible to reverse, royalty system for the future at a rate of 0% royalties.

11:09 AM  

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