From the President
BY SCOTT TUROW
This article is an expanded version of an op-ed originally published in The New York Times.
The U.S. Supreme Court’s decision on March 20 in Kirtsaeng vs. John Wiley & Son, allowing resale in the U.S. of competing foreign editions of English language books, was discouraging news for authors who earn no royalties when books are re-sold. Authors’ income streams are already being rapidly depleted in the digital era, when almost every player in the new electronic marketplace for books—publishers, search engines, libraries, pirates, even other writers—seem to be vying for position at authors’ expense.
My lament may sound like the usual interest-group breast-beating, but almost alone among professions, authors enjoy protection in the U.S. Constitution. Article I, Section 8 empowers Congress to make laws “[t]o promote the progress of Science and the useful Arts by securing for limited Times to Authors . . . the exclusive right to their Writings.” The premise is that a diverse literary culture propagating new ideas and new expression, and authors as an independent class whose livelihoods can’t be threatened, are essential to our democracy. Instead, the value of copyrights are being rapidly depreciated, a problem that hits hardest not at bestselling authors like me, who have benefitted from most of the changes in book-selling in the last several decades, but for new authors and so-called mid-list authors who find their chances to make a living dwindling.
E-books are much less expensive for publishers to produce—no paper, no printing, no warehousing, no transport costs, and, unlike hardcovers, no risk the book will be returned by the retailer for full credit. But instead of being more generous to authors, the six major publishing houses—five of which were sued last year by the Justice Department’s antitrust division for fixing e-book prices—all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts, equivalent to roughly half the traditional royalty on hardcover books. Bestselling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers will never admit that, but writers whose works sell less robustly find their earnings declining because of the new royalty rate, a process that will only accelerate as the book market pivots toward digital.
Of course there are many e-books being downloaded on which authors—and publishers—earn nothing at all. Numerous pirate sites, supported by advertising. have grown up offshore, offering new and old e-books for free. Too many Americans, especially younger ones, seem to believe that if it’s on the Internet, it belongs to everybody—even while they pay for cable.
The pirates, however, would be a limited menace were it not for the fact that the nation’s search engines point users to these rogue sites with no fear of legal consequence, due to a provision inserted into the copyright laws in 1998. A search for “Scott Turow Free e-books” brought up ten pirate sites out of the first ten results on Yahoo, eight of eight on Bing, and six of ten on Google, with paid ads decorating the margins of all three pages. If I stood on a street corner telling passersby who asked where they could buy stolen goods, and collected a small fee as I did it, I’d be on my way to the penitentiary. Despite their lobbying might, the search engines are hand-in-hand with thieves, even while they sail under mottos like “Don’t be evil.”
“If I stood on a street corner telling passersby who asked where they could buy stolen goods, and collected a small fee as I did it, I’d be on my way to the penitentiary.”
- Scott Turow
Of course, Google was already in bad odor in parts of the literary community because it decided late in 2004 to scan and digitize the contents of seven major university libraries, without bothering to ask the authors of any books still within copyright if they minded. The Authors Guild sued and the litigation is ongoing, after the judge scuttled a proposed settlement. Google maintains that they’re engaged in a “fair use” of the works, an exception to copyright, because they only show “snippets” of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the resulting revenue with author or publisher.
In 2011, a consortium of the libraries that partnered with Google, the so-called Hathi Trust, decided to put online for their users scans of close to 200 books Hathi had unilaterally decided were “orphans,” meaning they couldn’t locate the copyright owners. The “orphans” turned out to include figures like former bestselling novelist J.R. Salamanca—alive and well in Maryland—noted psychologist Albert Bandura, professor emeritus at Stanford, and Pulitzer Prize winner James Gould Cozzens, whose copyrights were left to Harvard. After the Authors Guild sued Hathi, it suspended the program. However other online uses that don’t involve content display were approved by the court, leaving millions of copyrighted works one hacker away from world-wide dissemination for free.
The run-in with Hathi points up growing fractures in traditional literary alliances. For most academics, the direct financial rewards of publishing have dwindled to next to nothing. While a scholar’s own copyrights may be worth little financially, those of other authors may inhibit an academician’s scholarly use of that work. As a result, under the cri de Coeur that “information wants to be free” some professors and others are calling for copyright to be curtailed or even abandoned. Despite the high-minded slogans, these professors are simply arguing for their own right to prosper in their academic careers, which are propelled by exhaustive scholarship, at the cost of other writers.
Libraries and authors, natural allies, are also increasingly at odds. In the U.S., despite our romance with capitalism, no one labels as socialistic our public library system that distributes for free the goods authors produce. (In many other western nations, authors receive a tiny fee whenever a library lends a copy of their works.) Even authors happily accept this, because of the critical role public and university libraries have played in nurturing them as writers and readers. Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device and an Internet connection. The only incentive to buy, rather than borrow, an e-book, is the fact the lent copy vanishes from the device after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries until there is a sensible system that doesn’t demolish the e-book market.
As if all this weren’t enough, there is Amazon, which, by some estimates, already sells more than half the trade books purchased in the U.S. across all formats—e-books, audible books, print-on-demand, and online and store sale of physical books. Amazon has done some good things for reading, readers and even for authors, especially by creating a portal that makes self-publishing, particularly of e-books, a reasonable option. But Amazon’s overwhelming commitment is to its own bottom line, and it makes bare-knuckles use of its surging market power, showing little regard for collateral damage to literary culture. Amazon has established its own publishing arm, raising the prospect that the site soon will be tilted to favor Amazon’s own books at the expense of competing authors. And last month, Amazon acquired a patent to re-sell e-books. That’s probably not legal, but if it were, the market for new e-books would drop sharply, because an e-book, unlike a book on paper, suffers no wear with each reading. Except for the most impatient, no one would buy new. Readers would save a dollar or two, but the big winner will be Amazon, which would essentially shift income to itself from the publisher—and author—who won’t get the share of proceeds they receive on the sale of a new book.
Many people would say all these changes are simply in the nature of markets or the Internet, and see no problem if authors are left to write purely for the love of the game. Last October, I visited Moscow and met with a group of authors who described the sad fate of writing as a livelihood in Russia today. They said there is only one physical publisher left, owned, they believed, by an ally of Mr. Putin’s. E-publishing is a poor option, since e-books are savaged by rampant and instantaneous piracy that goes almost completely unpoliced. In the country of Tolstoy, Dostoevsky, Pushkin and Chekhov, few Russians—let alone any Westerner—could name a contemporary Russian author whose work regularly impacts the national conversation. The Framers had it right. Soviet-style repression is not necessary to diminish the audience and influence of a nation’s authors. Just devalue their copyrights.