Post

With Us Or Against Us? That is Not the Question

February 15, 2011 , ,

Tomorrow, Scott Turow, a novelist and the president of the Authors Guild, will testify before a Senate hearing on the specific topic of online infringement. This hearing will almost certainly center around proposals similar to last year’s S. 3804, the Combating Online Infringement and Counterfeits Act—a detailed piece of legislation that delves into law enforcement practices and the technological underpinnings of the Internet.

Yet today, Turow, along with Authors Guild Executive Director Paul Aiken and James Shapiro, a board member of the Guild, writes a New York Times op-ed that begins with a lengthy discussion of Shakespeare and his collection of his due rewards at the playhouse admissions entrance, casting the debate in terms of creativity on the one side and piracy on the other. In the absence of copyright protection, they say, creativity withers.

There are a host of standard arguments that can be raised against this—some helpfully provided by the authors themselves. They use Shakespeare as a prime example of the value of paywalls, though Shakespeare died nearly a hundred years before the Statute of Anne was enacted as the first copyright law in Britain. Instead, as they point out, Shakespeare made money and a name for himself outside of a copyright system—by charging admission to see performances of his plays. Audience members frequently transcribed those plays and sent the transcripts to publishers, where they were printed legally. The response of the theater companies and playwrights was typically not legal action, but simply to publish their own official playbooks, more authoritative and accurate. And Shakespeare’s legacy, born in an area without copyright, thrives. [*]

But I’m less interested here in pointing out historical inaccuracies and more in discussing the immediate concerns of here and now—the laws that are being proposed in Congress in this twenty-first century. The point I’d rather be making is that the questions on the table—at least for the Senate, Congress, and all the various policymakers dealing with our copyright system—have little to do with the progress-versus-darkness dichotomy laid out in the op-ed. That’s because the conversation in those halls isn’t purely a philosophical debate—it’s a very concrete discussion of what laws we write and how they’re enforced. They’re about who gets sent a subpoena and under what circumstances, who gets sued, what websites get taken down or not. All of this happens against a backdrop where we all assume that this is because we want to compensate authors for creating, and we want the law to enforce that.

So we all want to reward creators. That question is past. The real question is how? And what we can’t do is run along merrily rubber-stamping every proposal that simply purports to work in authors’ best interests. We need to make sure that these proposals work. Do they work for their proponents? Do they work for all authors, large and small? And even when those questions are answered in the affirmative, the analysis isn’t done. It’s not enough even to pass laws that benefit all creators, since their interests must be balanced against the costs of the law. Agreeing that authors need to be compensated is a far cry, for instance, from appropriating a $10,000 stipend to all U.S. authors for this year. It’d be a clear way to remunerate authors, but stunningly bad public policy. (By the same token, it shouldn’t be counterintuitive at all that laws can in fact impede creativity and progress—would we have the 1812 Overture if its sampling of la Marseillaise had been actionable?)

Stepping away from hyperbolic hypotheticals about a total lack of copyright and facing our current situation, we can see that we have a large and complex copyright system—one that protects authors in ways undreamed of by Daniel Defoe, Thomas Jefferson, or even Mark Twain. Instead of the near-absent copyright protection Shakespeare had, or the maximum twenty-eight year term in effect in post-Revolutionary America, we have a system that measures protection term in generations, that grants rights not just to authors, but also to performers, that protects not only creative works, but also entirely separate technological mechanisms intended to restrict access to those works.

Protections for authors have expanded consistently in power and scope for the past few hundred years, and yet the public discourse continually calls for greater protections and harsher enforcement mechanisms. This is often in response to the fact that infringement isn’t going away, and new and more visible forms of it appear as technologies evolve.

When these things happen, lots of legislative fixes get proposed—some good, some bad, some very bad—and when criticisms of those proposals are raised, the critics are asked for a better alternative. It’s a common maxim in policy circle of all sorts: “You can’t fight something with nothing.” I’d like to challenge that a little here. There may be better solutions in the wings, but my current inability to solve once and for all the problems created by online sports streaming sites doesn’t make COICA an objectively good idea. This tendency to think that we must do something, despite that something’s negative effects, rather than take the time to come up with a better solution, is one that’s firmly engrained in Washington. Perhaps it’s because legislators hate telling constituents that the quick answer isn’t the right one. Perhaps it’s a sort of inertia.

Or perhaps it’s that we’re too used to courtroom dramas that are framed as mysteries—we get an expectation that a proper defense must be a la Perry Mason, where the defense isn’t complete until the finger can be pointed at another guilty party. But trials aren’t like that. Real life isn’t like that. All too often, a defendant is not guilty, but we don’t know who the actual perpetrator is. Sometimes, we can know a solution is the wrong one without knowing what the right one is.

These are important issues. They do, as the op-ed authors insist, deal with critical questions of culture and credit and authorship. They matter a great deal—so much, in fact, that they deserve to be done right.

[*] For those more interested in Shakespeare as a historical figure than as a symbol, an article by Shakespeare scholar David Scott Kastan notes the following:

Nonetheless, Shakespeare’s apparent indifference to the publication of his plays, his manifest lack of interest in reasserting his authority over them, suggests how little he had invested in the notions of individuated authorship that, ironically, his name has come so triumphantly to represent. Literally his investment was elsewhere: in the lucrative partnership of the acting company. He worked comfortably within its necessary collaborations, and clearly felt no need to claim his play texts as his own as they began to circulate in print and be read.