Scribal Wars: In Bid to Revise Copyright Law for Digital Age, New Authors Alliance Hits Resistance

By Ben Christopher

A war of words—and, indeed, over the future of words—is raging across the Bay Area.

On one side is a contingent of UC Berkeley academics and writers who have just formed the Authors Alliance, an organization they say will advocate for reforming an impossibly complex warren of copyright law in the digital age. At Wednesday’s launch party at the Internet Archive in San Francisco, the Alliance outlined its goals—including helping authors who want to make their works easier to access, reclaiming authors’ rights to out-of-print books, enabling libraries and archives to digitize works, and simplifying and limiting copyright infringement suits. Officially, it promises to “represent the interests of authors who want to harness this potential to share their creations more broadly in order to serve the public good.”

But if the Alliance thought no one could argue with its idea of sharing to serve the public good, it underestimated the reaction of authors such as T.J. Stiles.

A Pulitzer Prize winning biographer and board member of the Authors Guild—a group representing the economic interests of some 9,000 writers, including many of the country’s marquee authors—Stiles said he has read between the lines of the Alliance’s promotional blurbitudes and discerned a more radical agenda. In a letter to local wordsmiths since posted on the national Authors Guild web site, Stiles labeled the Alliance “an astroturf organization” that “exists to make it appear that there is a grassroots authors’ organization in favor of loosening copyright protections and limiting remedies for copyright infringement.”

It’s an interpretation rejected by Author Alliance co-founder and UC Berkeley law professor Pamela Samuelson, who calls it “all wrong.”

“We all know that the Internet has had a very disruptive effect on many different actors in this industry,” she told us. “How can we adopt our policies, practices and arrangements not just so that they offer a fair bargain to writers and publishers, but which also allow them to take advantage of the potential for much broader dissemination of works to a much wider audience? We’re not only thinking that that would a good thing for today, but that it would be consistent with what the framers had when they put the copyright clause in the Constitution to promote the ongoing promotion of knowledge.”

That “disruptive effect” has indeed turned on its head that old-fashioned business model of writing down words and then selling those words to would-be readers. As in so many industries, the sharing of digitized works offers creators unprecedented capacity for exposure, while also posing an unprecedented threat to their way of life. Mimicking similar splits within the journalism and music industries, the conflict between Alliance and the Guild—between a group who believe that the blunt instrument of copyright protection should be adapted to fit the brave new 21st century landscape and those who believe the new environment makes that instrument more important than ever—is a predictable one. And it’s one that is certain to play out over and over again across the industry for years to come.

In an email exchange with California, Stiles said he decided to write his letter only after Samuelson granted an interview to Publishers Weekly, in which, he said, she launched a “direct attack on the Authors Guild.” He said his letter was not an official Guild communication, but a personal memo intended solely for members of the San Francisco Writers’ Grotto, a local writers’ collective.

“Grotto members are working writers; many of them make a living from their writing or have hopes to do so someday,” he told us. This is in sharp contrast, he said, with academic writers whose work “exists in a prestige economy, not a commercial economy” and for whom exposure via digital sharing might revive works otherwise locked away in the cobwebbed obscurity of academic journals and limited press runs. For the tenured set, Stiles argues, the credo that “information wants to be free” goes down a little smoother, since they aren’t in the business of selling information for a living.

In her Publishers Weekly interview, Samuelson said that while “the Authors Guild does a great job representing the interests of the authors who subscribe to it,” they don’t represent the interests of all authors. For writers—academic and otherwise—who might wish to seek a broader readership by making their works more freely available, Samuelson said, the Alliance will be an alternative resource.

Stiles isn’t buying it. In his letter to the Grotto, he highlighted five positions that he alleged have been supported by the group’s directors and advisory board members. They include allowing buyers of e-books and other digital files to re-sell them (under the legal theory “first-sale doctrine”), allowing libraries to digitally copy books without imposing security measures, and allowing major corporations such as Google to copy books and then sell advertising against searches for them without reimbursing the authors.

It should be noted that the positions that have so far been endorsed by the Authors Alliance are neither this specific nor, in most cases, so provocative. That’s a point which Stiles concedes, but he said it doesn’t change his argument.

“Underneath the generic name, they represent a particular group who write as an adjunct to teaching careers, not people whose primary activity is writing books—you know, authors,” he told us via email after the launch. “There may even be specific legal changes they propose that I have no objection to. I hardly think copyright law is untouchable. The rub is, who makes the rules for whom? When we talk about copyright reform, academic authors are not disinterested.”​

Samuelson sounded nonplussed by the controversy in general and Stiles’s letter in particular. “It surprised me that a respected nonfiction writer would turn to fiction when it came to reporting on what the Authors Alliance is all about,” before the group had even launched, she said. She also points out that she and co-director Molly Van Houweling, a professor at the Berkeley Center for Law and Technology, would never support a “wholesale” adoption of “first-sale doctrine.”

“It’s probably true that we have a broader sense of fair use than (Stiles) and the Authors Guild do,” she said. But as for the policy proposals that the Alliance has made—and will continue to make—Samuelson said there can be a middle ground. “I don’t see this as a ‘you gotta choose one side or another’ type of situation. There are a number of issues where, if the Authors Guild could just chill out for a moment, we could work in a positive way together on.”

Those issues include proposing a small claims-like court for resolving copyright disputes, and making it easier for authors and researchers to use so-called “orphan works”—material for which it is impossible to determine the identity of the creator or copyright holder.

More importantly, Samuelson said, the purpose of the group is to “empower” writers on a case-by-case basis. “We want to help them achieve their goals for their work,” she said. “Sometimes that means helping them to put their work in the public domain, sometimes it means Creative Commons, and sometimes it means seeking a proprietary license. Each can be an appropriate thing to do depending on the circumstance. We just want to help people understand what their choices are.”

Of course, opposing authors such as Stiles consider their position to be “pro-choice,” too.

“If Prof. Samuelson is right that academic authors want Google to be able to scan their works, that’s terrific. They can volunteer. Or Google can simply ask,” he wrote. “But should academics, in the prestige economy, make rules for their own benefit for those of us in the commercial economy? If an author thinks the Internet has eradicated the laws of economics, and he can make a living by giving everything away for free, Godspeed—but he shouldn’t make that choice for me.”

That mistrust between the two factions of writers has some history behind it. When the Authors Guild filed suit against Google for its development of its Google Books database, Samuelson wrote a series of briefs in support of the search giant. While Samuelson claims that making the material free “promotes the progress of knowledge” and “if anything, might strengthen the market for books” by increasing exposure, Stiles and the Guild argue that letting Google monetize the internal content of books “opens the doors to all manner of unthought-of financial exploitation” of authors.

A few of Samuelson’s briefs also directly challenged the standing of the Guild to represent all authors. “They like being the authority for quote-unquote writers in the public policy arena,” she said.  “They don’t want to have any competition.”

Indeed, Stiles said much of his dismay with the Authors Alliance stems from their claim to represent the interests of all writers.

“We need dialogue. But instead of engagement by the sinecured intellectual-property theorists with those of us who deal with the material reality—a reality copyright was intended to address—we get an organization set up in the name of our profession, as if we were clamoring to restrict remedies for copyright infringement,” said Stiles. “I probably would not have written my warning to my fellow writers if it had been named the ‘Academic Authors Alliance.’ ”

Samuelson dismisses the characterization that the Alliance is solely for academics, calling it “a false divide” and noting that its advisory board includes non-academic writers such as former Poet Laureate of the United States Robert Pinsky, as well as Jonathan Lethem, Cory Doctorow and Katie Hafner.

“It’s true that a lot of us are academics and it’s true that academics will find the Authors Alliance more attractive initially,” Samuelson said. “But we think the issues that people are facing today are ones that face authors broadly.”

That might include reclaiming the rights of out-of-print books. “Writers might very well want to get rights reversion so that they can then make a new deal with another publisher, or so that they can self-publish,” she said. (Stiles countered that the Guild already offers free contract review to its members, which he said would help meet “the great need for educating academic authors to actually read their contracts.”)

Samuelson cites Pinsky as an example of a “quote-unquote writer” who could benefit from the Alliance’s expertise and advocacy. As Poet Laureate, Pinsky founded the Favorite Poem Project, a web site featuring videos of people reading their favorite poems. After one video received a takedown notice from the family of the poet, Pinsky became a client of the Samuelson Law, Technology and Public Policy clinic.

“I’m hoping that as time goes on and as we provide some constructive ideas about how to meet the challenges of the day, the prejudice that Stiles formed initially and tried to spread to his fellow writers will dissipate because I don’t want to go to war with him,” said Samuelson. “But he didn’t get us off to a very good start.”

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Comments

I’d suggest the papers Professor’s Samuelson has authored to get a clearer perspective on her mindset when it comes to copyright and authorship. For some reason not all the links work (Berkeley might want to fix that) but still worth perusing: http://people.ischool.berkeley.edu/~pam/papers.html Given that the organization’s board of directors, advisory board and founding members are, for the most part, academics it seems appropriate that much skepticism has been directed toward this fledgeling “organization.” There doesn’t seem to be much representation by those who make a living as writers and the folks with the AA seem, for the most part, people who likely have little understanding of what it means to work outside of academia and depend solely on one’s writing to earn a living. One also might want to take a gander at the money behind these folks. There’s an agenda at work at it isn’t representing the best interest of authors or the public.
Hi, important information and an interesting article post, it’ll be fascinating if this is still the case in a few months time