This (and many other things in your essay) treat physical copies as the only legitimate form of creative items. There is a large belief these days (accurate or not, I lean toward the former) than in many entertainment forms, we'll be moving away from the sale of the physical object. It will be inefficient and inconvenient compared to the downloading. And yet in this future, I have trouble imagining many folks saying "This version of Nat Gertler's Village People Medley that I just downloaded with Napster is great; let me go spend $8 to download the exact same files from the About Records site." Today it may be cumbersome to reuse the electronic file in some of the ways that we're used to with the physical media, but that is rapidly changing.

There has been revenue for Napster, who has been taking in money from investors building off of the popularity of their piracy tool. Saying there's no revenue is kind of like saying there's no revenue from music for radio stations, since no one pays for the music to be played.


Fair Use isn't something that one can violate; it's a category of exception that permits things that would otherwise violate the copyright laws. The "Non-commercial" test is only one of several tests that Fair Use material must pass through; meeting a single test does not automatically qualify something as "fair use".

You can't be prosecuted for infringment for that taping because of a specific law, the (horrible) Audio Home Recording Act of 1992. (It simultaneously hurts the protection of copyright, cripples technology, and creates a new tax for the direct benefit of the recording industry -- thank George Bush for this one.) That misbegotten law does not cover distribution of recordings via the Internet.
A discussion whose value falls apart when you move beyond the recording industry discussion. In the book world, for example, I'm not exactly a big name on the bestseller list, but I have made money for every single book I've written.... the advances in the book world are usually not needed to cover a lot of technical expenses the way that recording advances are. They cover living one's life, which is income generally is for.

Your discussion of books overlooks the fact that many books that are sold are not novels, meant to be read cover-to-cover. Educational and reference items don't necessarily have that cachet of physicality.
Yeah, and because of the black and white nature of movies and their lack of color, they will never make a dent against the legitimate theater. And the future will never come...

That's an interesting piece of logic, but it misses that overall booksales have NOT been declining. Heading over to bookweb.org (the American Booksellers Assoc. site), I see that sales of non-juvenile books went from 776 million in 1991 to over a billion in 1998. A dollar volume increase of 5.2 percent is projected for this year.
Sales per title have slipped, if memory serves, but that's because there are so many more titles being put out today.
As a book author, I can tell you that in the general case, if the publisher doesn't expect the reprint to make them money, they don't do it. They're not stupid.
So let me get this straight: you're actually calling for the publisher to give their authors the shaft, and not protect the writer's rights and royalties?
They can skip all that reprinting anyway; what's to gain by having the work handed out for free? Competition with their other titles?
Then one just have to go after the people making the copies. I fail to see the impossibility there.
Yes, the existence of copyright makes it possible for me to make a living as a writer.
Which unscrupulous types have taken away my copyright? I've worked in a number of creative industries, and at the very least I've been paid for rights taken in the vast majority of cases... and in the cases where I wasn't, the problem was not with the copyright.
Not as I understand it, no. In their later years, DC had arranged a stipend for them, increasing it after the success of the Superman movie. Were they worth all that the Superman rights would have made them worth? No -- but apparently they weren't penniless, either.
I think one is better off if one spends one's days doing what one likes, and still has some leisure time on top of that, rather than spending one's days doing something else and then trying to squeeze creating into the remaining time.

Look, I'm not saying that people shouldn't create things and distribute them for free. But acting as though making money equals getting ripped off, and working for free is not getting ripped off (or, curiously, getting pirated is not getting ripped off) isn't the way to advocate that. It doesn't even hold up on a creative sensibility, when you talk about the pleasure of the physical product and then push people to go without the physical product.

You're coloring that somewhat. There's also been revenue for MP3.com, which doesn't fit the "piracy" model that even I (little thief that I am) must agree Napster falls into. And Napster's also been popular for some of the same services as MP3.com, namely: exposure for unsigned and amateur musicians. Don't roll your eyes, this is the only reason I ever went to MP3.com, to hear music I wouldn't get anyplace else. Napster legally does the same thing. Investors aren't going to openly jump on the bandwagon of something that's soley popular because of an illegal feature (or else Bookwarez would have had funding too).

I don't see it. I've not known anyone to get Napster for that reason, and the unknown artists make up a very small portion of the Napster traffic. If the goal is to promote the unknowns, Napster is a horrible design. Why? Because it's designed to let you search for songs you know. This is very different from the MP3.com design, where they have lots of ways to steer you towards works and artists that you don't know but might like.
Even if you hear about an unknown band with MP3s out there, which is a better bet: hoping that someone currently hooked up with Napster has them available, or going to MP3.com and knowing their available, with good connections and low-bandwidth sample listening?

Well, not to get too far off topic-- I know I've done it. I know others have. And I know that-- as long as there are CDs out there-- some of us only use Napster as a previewing tool. Then we go out and buy the albums.

When CDs and, more to the point, books, go out the window, then it will be about nothing but stolen revenue, because no one would have a physical product to covet (album art, actual paper, etc.). Then its up to encryption, which gets cracked regularly anyway.

It seems to me what will hamper moves to the digital are the object fetish of the book itself and publishers' reticence to only release product in a form that makes theft that much easier. The future where reading online is easier will definitely come, but writers and publishers don't necessarily have to jump on that bandwagon. As long as there's people out there who can't afford internet access, there will not be such a huge push to having everything online.

Which also hampers the effectiveness of putting a comic online. A simple succession of pages on screen is a poor substitute for a comic. And it is not a "webcomic", it is a "comic on the web." Don't get me wrong, I'm planning on doing the same with my comic, and making it downloadable as well, but I don't ever plan on doing it like this again. I think we should use the web to do what can't be done on the page, otherwise its a poor experience.

Wow Nat! Great stuff! Boy I wish I had time to respond to all of it, you've made some really good points. But I do want to say a couple things...

I said in the rant that I felt the book industry probably treats its creators much better, and you've borne out my statement. I'm glad you've made money on your books! Rereading it, it's pretty unclear which "industry" I'm referring to in different parts of it... sorry about that.

"Your discussion of books overlooks the fact that many books that are sold are not novels, meant to be read cover-to-cover. Educational and reference items don't necessarily have that cachet of physicality."

True, but I'm curious as to what portion of the total market those books represent, and also how much they actually add to overhead; I suspect that the majority of these books move slowly, and that small print runs and extended warehouse stays make them very expensive. I'm curious as to what would happen if these were rendered down to digital files and stored for online delivery or print-on-demand.

"Then one just have to go after the people making the copies. I fail to see the impossibility there."

Well this is an extreme thought but... do you think it would be easy to prosecute the entire computer-using population of the US? Including all the corporations whose employees have such copies on company computers? 80 million Napster users... whew! This is what peer-to-peer file sharing like Napster and Gnutella are bringing to us, a (I hate to use this word) paradigm shift in the way "ideas" are "owned." I'm not saying it's going to be simple and easy to make that shift in thought and deed, but there's not a lot of likelihood that any Act of Congress is going to be able to stop what's about to happen. I urge you to read the Wired article to see where I'm getting this from.

"Yes, the existence of copyright makes it possible for me to make a living as a writer."

Yes, absolutely! But the NON-existence of copyright may not destroy your ability to make a living being a writer. Absent of copyright, your skills and talent would still be valuable commodities. If only Nat Gertler can write this book, then Nat Gertler can ask for however much money he wants up front, or he doesn't write the book.

I know that recipes can be copyrighted, but they are common and many are very similar. I can get Paul Prudhomme's recipes in a book. But can I cook like Paul Prudhomme? Nope! How much would you pay me to cook a meal for you using his recipe? Not much. How much would you pay Paul Prudhomme to cook precisely the same meal with the same ingredients? Plenty! And it would be worth it! What he creates cannot be put on paper, tho the separate components of it certainly can be. But can anyone except the artist create the art?

Barlow's article points out that copyright did not exist until 1710 (back in jolly olde England), and plenty of artists and idea people got along just fine back then. Da Vinci never copyrighted anything, but he made a living. Neither did Bach or Beethoven, and by all accounts both lived fairly affluent lives. There are other ways to make a living when you have unique creativity to offer. Can't look too far forward, but it starts with one of the most important parts of any business: client relationships.

I think that the digital age is going to destroy copyright -- as we know it now -- whether we like it or not. Some other relationship between creator and audience will need to be established, is all. I don't want people to lose their livelihoods thru death of copyright, but I'm really starting to believe that won't be the case.

"Yeah, and because of the black and white nature of movies and their lack of color, they will never make a dent against the legitimate theater. And the future will never come..."

Woops! [img]http://209.198.111.165/ubb/smile.gif[/img] Didn't express myself clearly here. The PRESENT state of these electronic reading devices leaves much to be desired -- and THAT'S why I don't think they're going to catch on fast. As the technology improves, with high-res "pages," better portability (think Star Trek PADD), and wireless networking, these things will completely decimate the print-book business. They're just not up to snuff yet.

Whew, there's so much here I wanna discuss with you Nat! I think our next CAPS meeting will be really interesting, no?

Parting thoughts: The people who developed Unix made the source code available to all for free. Linus Torvalds gave Linux to the world for free. It's catching on slowly, but it's gaining momentum, because it WORKS extremely well. Apple's new MacOS X is largely based on the same code. THEY will make some cash on it because they add value and branding on top of it. It's cheap and reliable, so it will save companies money. Oh hell, then Microsoft will bury in in marketing... but still, Linus doesn't care about being the richest guy in the world. I think he's doing fine at making a living, I haven't heard he's penniless and bitter.

[This message has been edited by Jeff Zugale (edited 09-27-2000).]

WOW, I just got an idea as to how to completely protect copyright!

Make it NON-TRANSFERABLE. Except by Last Will and Testament, or to nearest immediate family member in case of untimely death.

Then it becomes a non-issue, because nobody but the creator owns it or can benefit from sales of copies of the creation.

Isn't copyright limited in length anyway? Something like 50 years past the creator's death it becomes public domain? And there are two terms right, you have to renew the copyright at some point? So... this makes it so that the creator alone controls the creation until death, and the family or beneficiary gets it for 50 years after death.

No more BS about "intellectual property"; it belongs to the individual what thunk up the property, period. Ya want copies? Ya gotta say pretty please, and be nice to the spouse and kids, too. [img]http://209.198.111.165/ubb/smile.gif[/img]

------------------
Jeff Zugale
Pagan City Comics www.pagancity.com

[This message has been edited by Jeff Zugale (edited 09-27-2000).]

I do better'n make money -- I make a living! I do have other sources of income (comics, magazines, AAUGH.com, and so on), but the bulk of my income comes from writing (and occasionally helping translate) in the book field. And I keep making money... heck, I'm about to get another check for work I did over a decade ago.
I expect you'll find quite a few books fall under that category. Not just standard "reference" books (encyclopiae, thesauri, etc.), but also many textbooks (making up an "invisible" large portion of books, not for sale in most bookstores), cookbooks, computer books, craft books, and more.
You don't have to, any more than you have to prosecute everyone who ever speeds to discourage large amounts of speeding. You go after a portion, and you make sure that prosecution is visible.
It would certainly damage it severely.
Sure, if want to write advertising. If the ability to make money off of the work disappears, you end up with having to tailor content that it will serve someone's needs to be distributed. (I suspect that within the year in online music, you'll see some examples of this... say, David Bowie doing a 3 minute song about Pepsi, with Pepsi paying him half a mill for all the rights, and distributing it for free.)
When duplication was difficult... and not nearly so many artists as we have today, I suspect.
And had to create work only to meet the needs of the very rich, while the poor had little of quality created for them.
And giving Nat incentive not to create helps whom, exactly? It doesn't help Nat. It doesn't help the culture as a whole (unless you're anti-Nat, which I don't think you are.)
Could well be, but I won't be there. I've got a honeymoon to attend.
I miss how that protects copyright. It does put new limits on creative individuals... not something I'm particularly looking for.
Yes.
70 years, theoretically. (The closing date has been pushed back rather consistantly, so you can't count on anything ever reaching Public Domain these days.)
Nope. Copyright renewal is a thing of the past. That copyright exists until 70 years after you croak, unless you do something to disavow it.

Jeez, who says you have to give up copyright of your work to benefit from a little free distribution of it?

That's an extreme I'm not particularily willing to go to. Handing out one issue of a book to anybody with a net connection, like I'm doing, doesn't hurt my rights as the owner of that material. However, it saves me the cost of a print run and from the download numbers I've seen, more people have looked at it than looked at the last Issue of Cancer: The Crab Boy we printed.

I handed the file out for free, I know they can print it (at 150dpi ashcan size) and I know they can give it to whoever they want to. I want them to give it to whoever they want to. It saves me footwork and advertising money that I don't have.

All these huge arguments are always about extremes, why can't we use the free digital files to pump up the recognition and demand for the print publications?

Anyway...gettin' married Nat? Congrats!

------------------
Justin Savage
President/Editor/Web-bozo
www.sabresedge.com

Copyright? Don't even get me started!

Anyways, It seems there are a couple of different schools of thought here:

1:E-publishing. Flat out,E-xclusive to the net, full product, no physical world. This is the riskiest in light of napsterisms, especially if you plan on charging for the product.

2:E-preview(full).Like an MP3, you sample the full product(or presumably a full enough part to question the validity of buying the actual physical product). Good promotion, but the probability of abuse is still very real.

3:E-promo. A trailer. A teaser. A sample that will evoke buzz and curiousity for the rest of the product; not a quencher. In the case of my own recent ANDI books(48 pgs), I usually opt for a handfull of pages from the beginning of the book to plant an itch that they must scratch. Promo for larger volumes COULD afford to place a regular "issue" sized preview to create an itch for a trade paperback(a trend that seems like a solid help for creators and their distribution woes). Now if you had sites that housed a variety of these tidbits, you could scratch up a rash of good publicity for creators AND renew the COMMUNITY feeling (Look at all the "gamer" sites for games like Quake).

(sorry about all the dermal refrences- my kid had some kind of skin irritation last night)

sabresedge.com!

There are examples of each of these different concepts out there. A good example, once again, is Steve Conley's AST. He has one set of story lines that he gives away for free online, plus another line of stories with the same characters that are print published, thus using more than one concept at a time. Where's he get the energy!? Go Steve! [img]http://209.198.111.165/ubb/smile.gif[/img]

Anyway, I want to make clear that I'm not ADVOCATING the destruction of copyright. But it seems clear that it's going to be extremely difficult if not impossible to enforce in the future. I'm just as worried as you are about it. What I DO advocate is that creators should be able to control their creations and be assured of proper payment for their use, so a lot of what I'm talking about is more against "work-for-hire" in creative endeavors. Standard entertainment industry contracts REMOVE this control from the creator by forcing them, as a price of allowing someone to market and publish their ideas, to GIVE UP that ownership. This destroys the ability of the creator to maintain control and retain proper compensation. If you create something, you should own it, and nobody should be able to take it from you.

I mean, WE all know Seigel and Shuster created Superman. NOBODY can change that fact. DC can say whatever they want about owning the character, but they didn't create it. But by making S&S sign over all rights for a pittance, the precursors of DC "stole" the character and proceeded to make tons of cash with it, and didn't pay S&S much, if anything. Of course, the CONTRACT looks perfectly legal, and they can say "Well, we PAID them for it when they signed," and point to caveat vendor -- say that S&S should have been more business savvy.

Once you sign your rights away, you CAN'T GET THEM BACK. What I'm talking about is NEVER signing your rights away on your art. I'm not saying you shouldn't LICENSE people who want to make copies and sell them! Isn't that the way copyright is actually supposed to work?? That's how big companies do it, an example being LucasFilms' licensing of Star Wars property to Dark Horse.

I fail to see how a big media conglomerate would make less money marketing and selling a property that they didn't control utterly. I would guess that the exact same sorts of deals and contracts, submissions and rejections, payments and advances, etc. would apply. They would have to do more work selling the creator on all their different ideas for exploiting the creation, but I'd say that if Warner came to Chris and I saying our book is kickass and they want to turn it into a multimillion-dollar media property, we'd say you bet, we'll give you a license to use it and we want 15% of the gross!!

"You don't have to, any more than you have to prosecute everyone who ever speeds to discourage large amounts of speeding. You go after a portion, and you make sure that prosecution is visible."

Uh huh. That's really working well, I can tell ya! You live in LA, Nat, how many people here obey the limit? (Not counting the sitting in traffic time.) That's a perfect example of a nearly unenforceable law. If you REALLY want people not to go faster than 65, then cars should be built that way -- not going to happen (I won't mention how towns use ticket quotas to add to the municipal budget in order to keep taxes lower). If you want people not to copy MP3s and other files, you'd have to build the Internet that way. Too late!

"quote: WOW, I just got an idea as to how to completely protect copyright! Make it NON-TRANSFERABLE.

I miss how that protects copyright. It does put new limits on creative individuals... not something I'm particularly looking for."

It would keep other parties from being able to take control of a creation away from its creator. It would force publishers (in the broad general sense) to license properties from the individuals who created them. It would make it harder for some unscrupulous organization to exploit someone's creation without paying them for it. Not impossible, just harder. The issue of who is the owner becomes moot. And before you say that a single person wouldn't have the resources to go after a big company that wasn't paying them for the exploitation of their creation, remember that copyright infringement is a Federal CRIMINAL offense (as far as I know), the same as all sorts of other prosecutable crimes. Once a complaint is filed, it would fall under the purview of the US Attorney General. But this I'm a little fuzzy on, I think that infringement lawsuits are civil suits... so this one I'm not sure of, so don't quote me. [img]http://209.198.111.165/ubb/smile.gif[/img]

Promoting an equitable business relationship between creator and reproducer is what I'm after.

The availability of instant copies transferred by digital "word of mouth" is going to lessen the NEED for a reproducer, however! The big conglomerates exist in part because they are the only ones with the advertising and marketing firepower to get a creator's ideas out there where then can make money. Giving part of it away online is a different -- admittedly, slower -- way of creating that same marketing through grassroots methods. Yeah, if you want a big payoff right away, it's not going to happen, but it's still possible to skip the middleman and go straight to the audience. If you're looking to strike it rich and famous by next year, this isn't going to work for you under present circumstances. If that's what you want, well, go sell your stories, art and characters to Warner for some up-front money and the promise of royalty payments later. But don't bitch about it when you get screwed.

We used to need these guys to build our audience. We may not need them for that much longer.

"When duplication was difficult... and not nearly so many artists as we have today, I suspect."

Yes, this is a great point. They didn't have to enforce copyright, because it was damned hard to make a copy of anything. We have the exact opposite problem now. It's damned easy to make copies of pretty much anything these days, and there are a whole lot of "artists." The point is that keeping people from making copies is becoming impossible now, and we need to think forward on what that means and what's going to happen to us. Brute-force legislation isn't going to work any more than it worked during Prohibition, or now in the War on Drugs, or in keeping people driving under 65 MPH. People WANT to drink, they WANT to get high, they WANT to drive fast... and now, they want to, and can, make copies of stuff.

What are we going to do about it? Where are we going to position ourselves? As you've argued, Nat -- and let me make clear that I am 100 PERCENT PRO-NAT!! [img]http://209.198.111.165/ubb/smile.gif[/img] -- that copyright law is being destroyed by Congress and lawyers and big business anyway. So I'm thinking, what the hell can we do? The idea of abandoning copyright is a radical one, and I'm not comfortable with it, but if something is "worthless" in terms of commodity value, nobody's going to want to steal it or control it.

I'm certainly open to hearing other ideas!!