Eldritch Press at http://eldred.ne.mediaone.net/
© Copyright 1998, Eric Eldred. All rights
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Sun Nov 15 15:12:39 EST 1998
I read about your site closing at Cyberlaw, The New York Times:
and I want to know why you didn't close down as you said you were going to.
Sorry to disappoint you. I'll try to answer questions. If you have additional ones, please e-mail me at firstname.lastname@example.org. You'll have to wade through some of the simpler questions before you get to a discussion of our title here.
You didn't answer my first question.
Sorry. I had to threaten to close in order to call attention to this great problem--otherwise nobody would listen to me. I fully intended to close November 11. I decided to stay open only after all my files were safely copied to other owners. I realized at the last minute I needed to stay open in order to help contest the new law in January. Would you like to assist?
I'm asking the questions here. Are you still protesting the Copyright Extension Act?
No, I am no longer protesting. The copyright laws have been signed and have gone into effect and we will have to cope somehow.
Then why did you say you were shutting down your web site of free ebooks?
The new laws make my individual voluntary activities very risky. I could face jail, fines, seizure of my computer, termination of my Internet service without notice--and so all the ebooks could be instantly lost to the web. Besides, I can no longer accomplish what I set out to do.
You must be kidding. Just for reading and sharing books? What have you been up to?
Well, my site is pretty extensive. I have more than 100MB of files, many illustrations, annotations, hyperlinks, modernized translations, and so on. For example, my Nathaniel Hawthorne pages won an award as one of the 20 best humanities sites on the web, from the National Endowment for the Humanities. I have picked certain authors and tried to present their works as best I can, and many of the works are not in print or are hard to find anywhere. I have had readers from every country connected to the Internet, I believe. Everything is free and accessible to blind readers. I pay for everything from my own pocket.
I know you are being excessively modest, but aren't there other sites on the Internet that are like yours, and they never threatened to shut down?
You are right, thank goodness nobody else copied my plans. But my site might be unusual in a couple of ways. My site is almost entirely my own work and is based in my home on my own computer and connected to the net via a cable modem. And I have been more aggressive than most in going after works first published after 1922.
What will happen to your books and all the work you have done?
Others have saved the books in case I am shut down. The best way of finding them will be through the On-Line Books Page at CMU. (http://www.cs.cmu.edu/books.html). And all my work has been sufficiently rewarded already. At least one person has enjoyed reading each of my ebooks.
All this is quite shocking. Let's start from the beginning. When did you first hear about the Copyright Extension Act?
Last year there was a rumor about a bill in Congress, and I wrote some letters to my senators and representatives last year and this year, but I didn't pay much attention to it until I was told it had suddenly passed. The word was that the bill would not pass because bars and restaurants didn't like having to pay royalties if they played songs in public.
I didn't even see in the newspaper or on television news or on web news sites that the bill had passed!
I don't think anybody did. Both houses of Congress passed it on the day before the House debated proceeding with the impeachment of President Clinton. It was brought out of committee (without any hearings there) under a suspension of the rules, a few leaders in both parties got a chance to say a few words, and then the bill passed by voice votes, without even a quorum. President Clinton, who had previously indicated he favored the bill, quietly signed it on the last possible day.
Do you have any idea why the act got such unusual treatment?
A few gossip columnists reported that Michael Eisner visited congressional leaders and warned them that Disney's cartoon characters would soon go into the public domain and Americans would lose jobs. The reports stated that Mr. Eisner gave campaign contributions to the congressmen involved as soon as the bill was put on the calendar, but of course that is something perfectly legal under campaign contribution laws today.
Who spoke out for the public domain?
Nobody. You can read about it at http://thomas.loc.gov/cgi-bin/bdquery/z?d105:s.00505: Dozens of library groups and other public organizations opposed the bill, but there were no public hearings or debates, and not a peep between the bill's passage and its signing by the president.
So this law transfers millions of dollars from the public, for the next 20 years at least, to the pockets of media giants, and nobody said a word?
That's right, there were short mentions of the need to protect American jobs, and the rights of songwriters.
Well, doesn't it promote free or fair trade?
Let's put it this way: there is no evidence in favor of that view. Nobody made any economic studies of the impact one way or the other. And it's not clear how songwriters will benefit--what the act does is trade off present royalties from bars and restaurants for an additional 20 years of protection. There is online a very good statement by 50 law school professors against the copyright extension, and it includes strong arguments rebutting all those given in favor of it: http://www.public.asu.edu/~dkarjala/legmats/1998Statement.html
Why was the act named the Sonny Bono Copyright Extension Act?
Rep. Mary Bono, the widow of the late Rep. Sonny Bono, appointed in his stead, spoke in favor of the bill. She stated that he and she believed that copyright ought to last forever. However, she said, she had been informed that that would be unconstitutional, so she would settle for forever minus one day. In the end, she settled for an additional 20 years.
So, by naming the bill after a songwriter and entertainer it seemed to indicate that it favored songwriters and authors?
Yes, ASCAP and other songwriter groups had lobbied against the exemptions for bars and restaurants, and so were not in favor of the bill at all, as amended. When the bill's passage was kept quiet it was difficult for anyone to lobby against the President's signature.
But doesn't the act give more incentives to authors and songwriters to produce more creative works?
It is hard to see how. Can you think of anyone who would benefit from royalties in the period between 50 and 70 years after her death? Perhaps distant heirs might profit, but even Rep. Bono should live so long. Most likely it is only big print publishers and other media giants who will profit, for they are the ones who own almost all those copyrights. It is important to note that we do not support stealing from authors--it is an integral part of copyright to give authors these exclusive rights to, and rewards for, their creations for a limited, fixed term. But many of the works were created long ago--the term that started in 1790 as 14 years, then repeatedly extended to ridiculous lengths, is now somehow said to be necessary to reward long-dead white males, in spite of the contract that was made with the public when the copyright was registered.
Why do you say "big"--do you have something against success in business?
Oh, no. But it's economic reality. Print publishing has been transformed in recent years by the same forces that have "restructured" so many other businesses. Giant media companies have concentrated ownership of intellectual property. And then you have to consider the production rate for new property versus the amount that has trickled into the public domain already.
You can contrast the economy of the media giants with that of publishing on the Internet. The cost of entry to the web is so low that it is just not economical to meter the bits, as they say.
Aren't there already a lot of works in the public domain?
It would seem to be a large river. But the flow is being cut off. The copyright extension dam will prevent works from entering it for the next 20 years, and perhaps forever. Meanwhile the amount of works printed doubles every 7 years or so. In 100 years only one out of every 10,000 works would be in the public domain, according to Michael S. Hart of Project Gutenberg.
But even if they don't go into the public domain, aren't these works accessible to the public?
In many cases, no. It turns out that part of the new economics is that of the millions of works published only a few make money. And they make lots of money--especially if they are mentioned on television or by chance grab the public's momentary attention. These few blockbusters keep the publishing game going, just as baseball player salaries do. But the workhorse other players soon become forgotten. In just a few years they go out of print, disappear from library shelves, and are no longer accessible. Or distant heirs wish to control access to "protect" their esteemed ancestor's reputation, or just to try to get more money by playing on the scarcity issue. Ebooks online could change that whole economy.
Isn't the reason for copyright in the first place to encourage new works?
Yes, Article I, Section 8 of the U.S. Constitution provides for patents and copyrights, with a limited term, to promote the progress of the sciences and useful arts. At the time of the American Revolution, the industrial revolution in the colonies was retarded by protectionism in England. In order to open a factory in Rhode Island, an entrepreneur would have to pay an industrial spy to draw sketches of machines in England. It was obviously unfair to the community to treat intellectual property as perpetual private property. Words mean nothing unless they are shared, communicated. A democracy needs an informed public--if ideas and books are private property only rich people could participate in government or even understand the laws. But it took a revolution to change things.
Copyright for printed works started in England after about 1600. At that time publishing was concentrated in the hands of just a few London publishers. By protecting the works of new authors and publishers, for a limited term, copyright was meant to break down that monopoly. We often imagine that Gutenberg's invention gave the power of print to little people, but in fact for many years printed books were chained up and had to be licensed by the king. Freedom of the press as we know it, under copyright, is a recent policy that has adapted to underlying technological change.
So now the laws are being changed back again, to protectionism and perpetual private property?
It seems that way. Unless citizens and our children are educated about the need for copyright and the public domain and fair use, within the next 20 years copyright as our wise founding fathers constituted it will disappear.
If protests fail to stop the act, then shouldn't we test it with civil disobedience and force a court challenge against the act's consitutionality?
It's worth a try, I now think. Would you like to help?
If it doesn't cost anything. Does the copyright law apply retroactively--will works that have already entered the public domain now revert to their previous owners?
No, not this year. But we can expect that to happen soon. Once the foundation of copyright is changed to that of perpetual private property without any protest, then privatizing the whole Commons is the next step. There is precedent for that with copyright. When the Uruguay Round of the GATT treaty changed U.S. copyright law to "normalize" with other Berne Convention nations, and NAFTA made changes in U.S. copyright law, many works that had already entered the public domain in the U.S. were taken out of it if they were covered by copyright in other countries.
Is there anything else we can do to reverse these new copyright laws?
No. There are several laws to consider. The Sonny Bono Copyright Extension Act basically amends U.S. laws in relation to the Berne Convention and international trade treaties, either bilateral such as with the U.K. and Germany, or with many countries, such as GATT. The World Intellectual Property Organization (WIPO) treaty changes are included in the Digital Millenium [sic] Copyright Act (DMCA), and will go into effect after the Senate ratifies that treaty.
The terms of these treaties state that no reduction in term of copyright is allowed, only increases. Thus if the U.S. repealed either law now, it would be in violation of the treaty. If the U.S. essentially abrogates a treaty it has to renegotiate it with all the signatories--how many nations are there in the world today?
In any case, politically it would be impossible. Democrats such as Senators Kennedy and Leahy joined in support of the acts along with the Republican leaders. President Clinton strongly supports these measures. Trade negotiations are conducted not to protect consumers, free markets, or individual rights, but as protectionist measures to maintain jobs in industries that are either already dominating U.S. exports, such as Disney or Microsoft, or have trouble competing. Whether or not this proves to be the result of the new laws, this is what the industry lobbyists maintain and pay for.
Okay, the new law restricts access to works after 1922. Why not forget them, and just stick to works before 1923?
Yes, this is apparently what Project Gutenberg will do. To me it's like padlocking the library--well, not padlocking the whole library, just going to each shelf and taking off anything published after 1922, putting it into a locked closet, and telling readers they will have to pay money to read those, and if they want to wait 20 years they may be able to read them for free, only by then the acid paper may have crumbled. I call it marginalizing the library, diminishing the public domain, segregating our culture into what is economically important or not worth turning into money.
By allowing distant heirs and publishers with obsolete technology to maintain control, even the author's intent and original works may not be protected. These powers can destroy or pervert works as much as allow public access.
But you are right, if all one wanted to do was to scan old books, then this might be a viable course. But books are living documents. They need to be interpreted fresh for each new generation, not be locked in a closet for 20 years. Each year scholars write papers about literature. All that needs to be published. Science progresses. Copyright was set up to promote the sciences and useful arts. How does the new law do that?
James Joyce's Ulysses was first published in 1922. Why not make a hypertext edition of that, as you did with The Scarlet Letter?
Yes, the 1922 text of this book could be scanned and placed on line freely without fear of copyright infringement. But I'm not sure how useful just the text would be. This edition was full of misprints and gross errors that were not corrected until recently--and those corrections are under a new copyright. There are already a couple of books in print (and under copyright) that have extensive notes to the text. In order to produce a new hypertext edition it would have to be in a "clean room" environment to avoid any infringement problems. This shows the impact of the new copyright laws on our whole culture of scholarly work and fair use. Books as perpetual property property are incompatible with democracy and humanism. I agree that before these new laws, an individual could undertake such a project and it would be tremendously useful because of the power of personal computers and the Internet. But there is no getting around the new laws, so in my opinion it is a job that has to be left to some library or archive. And these organizations are just not equipped to do the job.
Why not move offshore, set up a server in a country where copyright law is not so restrictive, or in a country that has not signed a copyright treaty?
Yes, some of us have considered that. For example, some books were printed in the U.S. and Canada at the same time. The law in Canada sets copyright term to 50 years after the author's death, which may be less than the term in the U.S. now. And there are some nations in the world that have not signed copyright treaties or intellectual rights trade treaties.
But we feel this would be illegal. We do not wish to be characterized as digital pirates. And in any case we don't think it would work.
For example, both Canada and Australia will soon consider extending their copyright terms to 70 years.
In September, 1998, some U.S. news reports from Scandinavia gave some hints about a possible future. The Church of Scientology had sued someone in Sweden for publishing in a UseNet news group some unpublished documents the Church claimed copyright on. The person who was convicted for distributing them over the Internet is appealing, but others have been threatened in Norway, where there is a similar right to access public documents. See http://home.sol.no/~spirous/CoS/archive/events/zenon/
We predict that U.S. trade negotiators will put pressure on all other countries to change their copyright laws to correspond with U.S. law, or face trade sanctions for the whole nations. We could expect no less to happen in any country where intellectual property would be seen to threaten the property rights of U.S. publishers. This would be an effective means of protecting American cultural hegemony.
Secondly, the connectedness of the Internet makes it quite easy to identify any copyright violators. Thus the Internet connection of the whole nation could be severed from the net, or threats to that effect made until compliance was assured. It would be risky to spend any amount of money on an offshore server under these circumstances.
Finally, we don't want to be seen as digital pirates. We actually respect copyright--and we don't believe that those who want to pass laws abrogating it, and replacing it by perpetual personal property rights, should have the satisfaction of taking over the high moral ground.
Is there anything else we can do to scan books first published after 1922?
Yes. There are several plans to consider. Many copyright registrations were not renewed, some books might fall under a special exemption for libraries and archives, and a few important books might be donated or licensed for free online publication.
Perhaps as many as 80 per cent of the books registered in 1923 and thereafter were not renewed within the following 28 years, and thus fell into the public domain. You could help in identifying these works and scanning whichever you think need to be.
John Mark Ockerbloom at CMU --
has organized a project to scan the 1950-1977 renewal records in the Catalogue of Copyright Entries. If these pages were placed online, it would be fairly simple and reasonably safe to look up the copyright status of works first published in 1923 and thereafter. The 1978+ records are already online, but the earlier ones now have to be looked up on microfilm or in books in certain libraries. Volunteers are needed! This project will also cost a couple of thousand dollars in dimes.
The second idea is to try to take advantage of Section 3 of the Bono Act, which allows libraries and archives to make copies of certain works in their last year of copyright term. The works must be of no economic value, not currently available at a reasonable price, and the copyright holder must not have certified to the contrary. We need an intellectual property lawyer to state his opinion what this means! The section also states that no rights to further distribution are granted. Does this mean no web publication? It would seem that the intent to offer an exemption here has only taken away the rights that libraries would otherwise have under fair use in the previous copyright law, but perhaps an opening to the public domain has indeed been granted.
Finally, it is possible that some wealthy individuals will decide to support the public domain, buy up a copyright or license, and donate the work to a project that can scan it and publish it free on the web. Currently there is no organization set up to accept such rights and do such work. It would definitely be a good idea--perhaps it is the only solution that would work--but the question is, who is going to do it? You?
If such an organization were set up, something on the order of The Nature Conservancy, then it would be something that authors and heirs could donate to themselves, when they have copyright to a work that is no longer published, but which deserves to be read still. There are many such works that financially strapped print publishers will not take on, but which would be perfectly economical to publish on the web. Such an organization would need project leaders, lawyers, grant money, and so on, all beyond the capability and interest of the current volunteers.
I am trying to say that one individual can hardly be expected to take on these jobs. Now it is time to organize something like the public radio broadcasting system, a vast project. My shutting down of one web site will not affect it. It's going to be the job of a library or archive, under the new laws.
How can I help in the project to OCR books and place them online?
If you want to get involved, see the pages at
How can I teach The Scarlet Letter without your Hawthorne pages?
In the first place, they will live on at the Nathaniel Hawthorne Society, where the experts will do a better job than this computer amateur can do. In the second place, you teachers ought to learn something from this experience. Instead of depending on somebody else to provide you with a web site and resources, take control and do it for yourself. You don't even need to be connected to the Internet to use a web browser to read pages you create or download.
Why didn't you just scan books obviously in the public domain and donate them to Project Gutenberg or some other free online ebook organization?
I tried, but for some reason Project Gutenberg would not take them. I wanted to try out new formats that the old gopher sites could not use. I wanted to show that HTML was excellent for online books. Hardly anyone else was doing that when I started in 1995. I adopted some authors and took on all their online works--I couldn't do that if I donated each of them piecemeal.
But if you are giving them away now to online libraries and individuals isn't that doing the same thing?
In a way. However, I have had to remove quite a lot of material that I had received permission to print online at my site, but that I did not have permission to transfer. As well, I removed any other material whose status might be questionable. And I am taking my name off the files--I can no longer be responsible for them at other sites. I still don't think they would fit for Project Gutenberg's biases, sorry.
Will these other sites be able to continue serving your books--you seem to doubt that you could yourself--then why do you think they will be better off there?
The new laws give some exemptions to libraries and archives but not to individuals such as me. They also have resources I do not, such as intellectual property lawyers to defend them. They can seek and get permission from copyright holders--as an individual I find that too difficult in many cases. They are also experts in the material--I am an amateur--they should have been doing this all along, but it seems I had to blaze a trail and show them how.
Isn't what you are doing like cutting off your nose to spite your face? You threatened to prevent access to pages already in the public domain just because some others won't enter it on schedule.
Yes, it seems that way. I started as a protest against the Bono Act. There was no publicity or debate about this law going into effect, and at the same time many readers were blithely accessing my site. I had to set up a redirect page to tell them to write the President if they wanted free books on the Internet. Then I brought the server back up, ending the protest. (Then the server went down because my ISP had problems with its DHCP/DNS server, in no way connected with my protest.) I planned to go on just as before. Then I looked at the other laws about copyright and the Internet, I reviewed a couple of e-mail threats, and then I decided to shut down permanently. At the last minute I was persuaded to keep the site open until January. Let me try to explain why.
The new laws have a chilling effect on any individual who tries to run a web server of free e-books. There may be some exemptions for libraries or archives. But an individual citizen places herself at great legal and financial risk under the new laws. The legal status of some material on the Internet is indeterminate and would have to be decided by a judge. But the new laws allow any bozo to complain to an ISP that a member is serving copyrighted materials, and the ISP will have to shut the service down, or face contributory infringement charges. It doesn't make any difference if the material is really copyrighted or not, only that it is alleged to be. (There are penalties against false claims, but that would have to be decided by a court, and who can afford a lawyer to sue the other party?)
Have you ever received a cease and desist order?
No. Under the old laws, that would be required. Then I could just verify the claim and remove the material. If I did not, I would be subject to some civil penalties for damages and attorney fees. But under the new laws a formal cease and desist order is no longer required--a simple e-mail to the ISP has the same effect. Then if I do not comply by immediately removing the material, I would not only lose my Internet service, but also I would face criminal penalties--a large criminal fine, and time in jail. All for reading and sharing a book.
The same thing now applies not only under DMCA, but also CDAII. Some sites serving material considered "harmful to minors" will have to remove it or face loss of service or criminal penalties--or violate reader privacy by requiring proof of age such as a credit card.
I did receive a couple of letters from publishers stating that I needed their "permission" to print works that had been on my site for three years.
Did you have any material on your pages that violated anyone's copyright, or was it all in the public domain in your opinion?
I thought it was all in the public domain, or at least thought there was a good argument for that. But I have been more aggressive than most in going after material published after 1922. If the work was published before 1989 and didn't have a copyright notice on it I considered it in the public domain. No every publisher agreed with that. And they raised other, more complicated issues.
One publisher representative complained that I had not asked them for permission to scan a work they had published. I responded that the work went into the public domain after they had failed to renew it. Then they said that I should not have published that work, that they had subsequently printed a new edition that corrected errors and was newly copyrighted. I responded that I would mention that fact, but I had not seen the new work. Then they said they I could not publish the work because it contained photographs that belonged to some other archive. I could not get the archive to respond to my requests for permission. Thus I took the entire work off the web.
A second work was never copyrighted at all by the original publisher. Again, the agent stated that one or more images "needed permission" from some other archive, but I had no way to determine who they were or how to get permission. Thus I removed the entire work.
I therefore concluded that under the new law it was quite risky to reprint any work first published after 1922. It was also quite risky to publish any book that might contain an image or quotation that a print publisher considered "owned"--whether the original work or the reproduction rights--by an archive, library, or other publisher.
I considered that even if I was right in my convictions I might have to go to jail to prove them. I remembered what a night in jail was like, and I decided that all this was not worth that.
You mean you have spent a night in jail for publishing online?
No. But in 1970 I did spend a night in jail for blocking not the information superhighway but a sidewalk--or so that is what the police and judge said. I thought I was exercising my rights by passing out leaflets protesting racism, in front of a Boston institution. The cops did not agree with my ideas. Today, they would consider it doing me a favor to put me in jail if I dared wander into the traffic of the national information infrastructure, I guess.
Some radical you are. But it seems that print publishers consider digital copies as "stealing" their works?
Yes, they are perfectly happy to claim copyright when that applies, but if necessary they will just use whatever pressure it takes to gain a competitive edge. They make money from their print works. They fail to see that an online copy for free does not prevent them from selling or owning the work, and might even enhance sales.
But you were saying the new laws in effect set up a situation of prior restraint on publication?
Exactly. Even if there is one image on a large site of questionable provenance or copyright, the whole site can be prevented from publishing, the computer server can be seized, the publisher risks going to jail. Those who wrote the law tried to give exemptions to ISPs as common carriers. The result was forcing them to carry out infringement claims or risk becoming involved in defending subscribers. There is no provision for a hearing or administrative procedure to resolve such complaints--the subscriber would have to find out why her service was terminated, who made the complaint, sue the person, pay for attorneys, and so on, in order to resume publishing. This is prior restraint on free speech.
Courts have decided that copyright infringement claims must be made in a timely fashion. But print publishers have been very slow in waking to the fact that e-books can be successfully published on the Internet. It took three years before two publishers emailed me.
You keep referring to criminal penalties under the new laws, instead of civil remedies for copyright infringement--you mean it is now a criminal act to read and share a book--when did that happen?
It started last year when Congress passed the NET Act. An appeals court in Massachusetts had found not guilty an MIT student who had placed on the hard disk of his account some copyrighted software. He was not selling the software, but others were copying it and using it without licensing and paying for it to the manufacturer. Congress decided that even if he was not selling anything, just sharing the copyrighted material ought to be a violation of the law, and some severe punishments such as fines and jail ought to be applied to prevent anything like that from happening in the future.
In addition, the new Digital Millenium [sic] Copyright Act makes it a crime to remove a copyright notice and distribute a work that is copyrighted, or even to bypass any locks that the manufacturer has placed on it, and read the material without permission of the copyright holder. Merely reading a book is now a crime if you are not careful. And often the copyrights on these works are specious--but you can't contest that unless you risk violating these other laws.
So why not just take off your site any images or text that might conceivably be subject to any infringement claims?
Yes, that is what I have tried to do. But if even one more image is questioned, the rest of the material is at risk. And it is far too difficult to get good answers on the copyright status of much of the material I wanted to post. So I have decided to move all of it to libraries or archives that are separate from other material, so as not to place all of it at risk. Who knows what other claims can come in tomorrow.
It seems that an individual running a web server at home can easily end up as roadkill on the information superhighway.
Why did you set up the web server at home in the first place?
Just a hobby. I thought it might be a nice idea to share some books I enjoyed reading. I never suspected that it would ever be a crime to do that.
After a bit, I got overwhelmed with the power of having a printing press in my computer that could instantly send my words everywhere in the world. I imagined that what I was doing was promoting democracy, respect for other people, mutual understanding, literacy, appreciation for literature, making books accessible to blind readers, and a lot of nice warm and fuzzy things. I wanted to show everyone how great all this was.
But don't you have a contract with your cable company to provide service--how could they just terminate without notice?
The contract says nothing about my paying to run a web server. They don't prohibit it, nor do they support it. In fact, administrators are now being pressured by the RIAA to shut down digital music MP3 servers run by users even if they do not carry copyrighted music. It seems I would have no legal standing to sue the company.
Why not move your pages to another ISP?
I did have a commercial ISP that gave 10MB of free web space. I started by paying $29 a month. When my files got up to 100MB I was paying $79 a month. When my pages became so popular that "bandwidth" exceeded 3GB a month, my charges were more than $200 a month. The cable company charges $49 a month, gives better service, and I have complete control over the server.
We seem to be talking in a downward spiral here. Tell me, you started as some sort of libertarian or radical?
Oh no, I try not to get involved in politics. I just like books and can't imagine not being able to share them with other people. I do try to read them critically and I admit that a number of these books might be powerful enough for somebody to drop what they are doing in life and devote themselves to something more meaningful. But this is something that readers have to find out themselves.
Sound good. Then what happened?
When I took a look at the new laws, I realized that in order to enforce them, there would have to be massive invasion of reader privacy. It would become a criminal act to read a book you were not supposed to. ISPs would have to start to spy on traffic and user web page content to make sure nobody was violating any laws, else face heavy penalties themselves. Government agencies would likewise be charged with enforcing copyright infringement claims in all network traffic. Already the Customs departments of some countries have checked laptops with scanner programs to see if people are bringing in illegal software. Pattern recognition software is available and in use to detect text or images that might be illegally shared. Someone would monitor you to see which books you read and whether or not you were authorized to do so.
The personal computer connected to the Internet--that I imagined was the fount of great personal power and freedom--is thus turned into the opposite. It is now like the telescreen in the book 1984-- both display and camera, and centralized, networked computers are ideal for central control of populations. We are all sinners and potential criminals and dissidents, and thank God computer technology will allow governments and big business and big brothers to watch over us.
You exaggerate. I never heard this before.
Ever read Richard Stallman's science fiction piece on this subject? It seems he predicted it a few years ago, but few were paying attention.
If it has become legally and financially risky for one person to publish on the web, why not license your works to one of the new "e-book" appliance manufacturers--they are looking for content.
Oh, you mean the antibooks? I thought we would get to them sooner or later. They are really the crux of the matter. It's not so much the new laws, but the reasons behind the new laws, that count here. The battle of the ebook vs. the antibook--let's cut to the dramatic part now.
Here is the way I see it. You have to remember though
that hardly anybody agrees with this position at this
time, so believe as much as you like. By the way,
I only recently discovered that all this was predicted
in great detail by Berkeley law professor Pamela
Samuelson, in "The Copyright Grab,"
WIRED magazine, Archive 4.01 January 1996,
Wait a second. Way up in the title you used two words I don't understand--"ebook" and "antibook". What do you mean by that?
Well, an ebook is an electronic book--that is, the content, essentially what corresponds to a printed book, except digitized. Sometimes it is spelled "e-book" but the trend is to do away with the superfluous hyphen. We have long used the word to stand for an electronic text, often with illustrations, assembled in pages or files as is a printed book--often it has the same title and is really just an electronic copy of the book-- other times it is a derivative work, including new notes, additional illustrations, and so on.
This word is being hijacked by certain manufacturers of what I call proprietary handheld antibook viewing appliances (PHABVAs). In other words, instead of the content, they want to term an "e-book" the appliance, which is about the size of a printed book, because they want to build their market on something that consumers are already familiar with.
Well, we've always needed a computer to view or print out an ebook--what is this about "antibook"?
Aha! An antibook is like antimatter--as soon as any ebook gets close to it, it poof turns into something completely opposite to a book, just cash to the seller, and the rest of the intellectual energy falls to the entropy state.
By definition an antibook is a book that has been murdered--it has been bought up like private property, enclosed inside a secure hardware lock by strong encryption and digital signatures, wrapped up inside a shrinkwrap software license you have no choice but to accept, copyrighted whether it deserves a new copyright or not and protected by the criminal sanctions of the new laws, delivered directly to consumers over the Internet instead of being sold by used bookstores or browsable on a bookstore shelf, incapable of being lent by public libraries because of all the licensing restrictions, locked up securely so the reader cannot print it out, copy it to a disk to backup or use on another computer or share with anyone else, in fact so locked up it requires proprietary software or hardware to even view the antibook, incapable of being resold because of the shrinkwrap license and the hardware locks, and unable to be accessed for any fair use by scholars or by anyone, including blind readers, if it ever technically reverted to the public domain.
Heck, that doesn't sound like a book to me at all--that's a pay-per-view event. It's like television, not the Internet--why would anyone except the big print publishers want to use such things--no little individuals or small publishers will be able to publish to these devices, right?
Yes, it is like pay-per-view television. It's like the Microsoft Channel icons they started to impose on every Windows desktop-- consumers have the "choice" of receiving any of the channels the publishers have purchased from Microsoft. It all goes in one direction, except for one thing. Without your being aware of it, important marketing information is fed back to the publisher--what you buy, what you view, what other books you read, what your demographics are, what equipment you have to view the antibooks--and the publishers can mine their databases and know exactly how to manipulate sales to you of these antibooks.
So where do those PHABVA things come in?
Oh, ebooks can be viewed on any computer. But antibooks require special treatment. It's too difficult to prevent someone from copying an ebook, so the print publishers insist on antibooks in PHABVAs to protect their "intellectual property rights".
But aren't PHABVAs supposed to be better than paperbacks and regular ebooks?
You would think so if you read their press releases and advertisements. But look more closely. Compare them carefully on price, on portability, on resolution and readability, on convenience, on functionality, on resale value, on added value such as color illustrations, on screen size, weight, capital investment in hardware, battery purchases, capability to tear out pages and use them to wrap fish, longevity --well, I think you will see quickly enough that there is one big difference. The PHABVA enables the antibook, that's it. There is no reason for a sane person to convert an ebook to PHABVA format except to place it in an antibook.
What content will be available for PHABVAs?
That's a good point. There is very little so far. In the past, that has been a stumbling block for similar technology such as Sony's Bookman or Franklin's appliance. So the big print publishers are getting smart. They are going to try to do two things. They will try to steal ebooks from the public domain and convert them into antibooks--does this sound familiar, Disney viewers?--and they will form a cartel with government support to set a "standard" so they don't have to compete in the free market like VHS and Betamax did--and they will be able to control everything to enable their antibooks.
So you are against selling ebooks over the Internet?
Oh no! I treasure the public domain, but I labor to add value to books, and I see no reason why creative expression should not be protected by copyright and receive proper renumeration. I think it is a very good idea to sell ebooks over the Internet. Quite often an ebook can have a different function and exist well alongside a printed book.
But I firmly believe that ebooks for sale should be protected only by copyright, and that turning them into antibooks is neither necessary nor desirable. The copyright needs to have a reasonable term--but I would have settled for the term before it was lengthened to ridiculous lengths.
Let me say again that I support copyright--as our founding fathers constituted it--and do not wish it turned into perpetual private property.
May I suggest that you buy an ebook online right now? See
--this is "Melancholy Elephants," by Spider Robinson, Copyright 1982, and is an award-winning science fiction short story in which a woman argues with a senator against copyright extension. You can read the first part for free and securely order the second part, which is protected by copyright and not in antibook format. We are happy to give credit to Mind's Eye Fiction at http://tale/
I note one little place where the story oversimplifies. The Copyright Office is not like the Patent Office--it does not validate originality of a claim. Anybody can slap a copyright notice on a work and register it. However, with digital media the situation has changed. No longer is it required that the source be placed on deposit with the Library of Congress. It is no longer possible to go there and check to see if a new work may inadvertently reproduce the earlier creative expression. For example, in the Caldera suit against Microsoft, the defendant allegedly "lost" the source for DOS. And, further, copyright suits can be based on "look and feel" even when source code is not copied. In a document released in early November, 1998, a Microsoft employee seems to indicate that the company should use its power over copyright and patents to suppress the open source software movement such as Linux.
So you are worried your ebooks will be stolen and turned into antibooks?
You bet. I have been approached to license my books to them already. First, they will ask to do it for free, offering to make them available to new readers without my having to pay them anything. Next, they will offer to mention my name as if they conferred some distinction on them. Then, they will offer money. It so happens that I don't need the money, and I despise the whole concept of antibooks, so I refuse.
But since the original texts of my ebooks are in the public domain, they will simply steal them and convert them to their antibooks, thereby gaining a critical mass of content to get them over the first hurdle of marketing.
But why would anyone want to buy one of your ebooks in antibook format if they could read it for free on the web?
Oh, you think the PHABVA makers are going to tell readers that?
And do you think the big print publishers are going to stand for any competition from this little guy? Don't they now have the power of the law and the government behind them?
A very similar situation is going on with the technology called Divx. You can today go to a Circuit City store and buy what looks like a DVD, a disc similar to a CD that is somewhat less expensive. However, hardware locks allow Divx to be played only for a few days. To access it after that, the customer needs to pay more money to an online provider. This technology is not popular. Similar technology applied to pay-per-view books would not succeed if a cartel or government intervention did not skew the free market.
PHABVAs have government support you say?
Yes, it's strange--the whole World Wide Web was formed without any direct government support. But now it is being made safe for e-commerce.
So NIST (the U.S. National Institute for Standards and Technology) held a conference, invited PHABVA makers, big print publishers, government officials such as from the Library of Congress, and Microsoft, to form this cartel and set a standard.
But doesn't the web already have a standard--HTML?
Yes, but it allows only ebooks, not antibooks. The cartel would settle for nothing less than an antibook standard that allows ebooks to be sucked into antibooks.
So really this is a recognition of the success of your effort to make ebooks, in a way?
Yes, when we started, the print publishers denigrated ebooks as not having the usability of printed books. They attacked hypertext, which was some strange way of deconstructing a book, in the hopes of killing off the technology so they would not have to compete with it.
But the WWW allowed real ebooks to flourish and become popular. Nobody ever was able to discover that anyone was copying and selling copyrighted printed books as ebooks, but that was what the big print publishers claimed. So they went to their lobbyists and joined with other media publishers such as Disney and recording companies, and got the laws changed.
It so happens that big print publishers are losing money. They needed to have some protectionist laws in order to be able to continue making money. No matter if the changes in the law stifle innovation, never allow a return to the original authors, and benefit only their pockets at the expense of the public.
Back to the antibook standard--I hadn't heard about that.
At the NIST conference a Microsoft vice president announced that his company would set an "Open eBook standard" for PHABVAs and antibooks.
The conference proceedings are sketchy and Microsoft has not responded to questions, so we don't really know anything except some vaporware statements in press releases at this point.
But in my opinion the only reason for such a standard is to move ebooks into antibooks. The press release said the standard would use HTML and XML. These are buzzwords for openness, but the way Microsoft intends to use them is in no way open, but rather as devices to lock up ebooks. The conference participants said Microsoft was going to make the standards process open--but nobody is able to say how this is going to be done-- certainly there is no evidence that the W3C or any other open standards body will be involved.
All these are bad moves for booklovers, but can't we just ignore them and do our own thing, with ebooks or printed books?
Sure. In the ordinary course of events these antibooks would fail in a free market-- why would anyone buy one? But the market is no longer free. These big companies have bought protection under the laws and now have the power to stifle competition.
If they can sell directly to the public, then bookstores and libraries have to go out of business--what would they buy if everything is pay-per-view?
And small publishers and little individuals like me will not be able to compete either. Think of television or radio--who is given the power to broadcast--not you or me.
So you are saying that not only will books be turned into pay-per-view but so will the Internet?
Yes. Companies like AOL and MSN have not been able to afford to create new content themselves--so they advertise all the free stuff available on the web like my books. When enough suckers buy into these proprietary organizations, and it becomes difficult for small ISPs to compete for connections, then they can buy up or simply exclude whatever they find to be competitive.
Basically what is happening is a trend to what is technically called VPNs--virtual private networks operating over the Internet to tunnel secure communications directly between publisher and receiver. Then instead of being like ham or CB radio, the Internet becomes like pay television. The cable companies have the concept down pat, and of course Microsoft is investing in them. Few other providers are providing the high bandwidth to the home necessary for video and other advertising.
The Internet is being made safe for e-commerce. The laws are being changed. Digital pirates will be cast out and exiled to little islands in remote oceans. The world market economy will go electronic. Our freedoms will be entirely those of the modern American middle-class consumer.
Then the alternative to antibooks will have to be ebooks?
The ebooks are now digital media just like digital music or digital video or software or any stream of bits. Law and economics will have a hard time telling them apart. It looks like we will encounter a sharp divide between the proprietary side such as antibooks, and the "open source" or "copyleft" side such as ebooks. Here I discuss ebooks because to most people it is obvious how important books are, and most readers are quite comfortable with the concepts. But parallel movements are going on in software and music and other fields. It seems that ebooks are seeing the crunch today because books have been around longer than the rest, and are flowing up to the 1923 dam.
So the problem is not basically the new laws, but a failure to comprehend the underlying technological changes?
That's what I think. The new laws make no sense when the technology of electronic publishing has made it so cheap and easy for a person like me to publish much better stuff than the print publishers can do. They make sense only if they are means to retard technological change and serve as protectionist measures to allow the old print publishers to continue in their ways.
For more on the economics of digital media, see
the Open Content effort at
and the papers of Hal Varian at U.C. Berkeley, especially
The same principle I believe applies to the other digital media.
For example, a copyright term of 70 years is the lifetime of about 10 computer generations --by that time, the equipment to read tomorrow's antibook will just not exist.
But if we don't have books, libraries, bookstores, even ebooks--if everything is pay-per-view--then what will happen to our culture, our civilization--how can anyone engage in any kind of democratic discussion, if everything is perpetual private property?
You are right. That is certainly not a world I would want to live in either.
So what can be done about it? The laws apparently can't be changed, and the public domain has already been savaged and is threatened by destruction--help!
I don't know the answer to that. All I know is that I started to use personal computers and read books with completely different goals--and now the situation has been turned around to enable what is almost a fascist mass consumer society.
The only thing I can think of is to try to educate readers about what is happening with ebooks, and a more appropriate view of copyright. Somebody needs to organize a Book Conservancy, but I'm not sure that I can do anything here.
What we need now are some new ideas. I think we are all stunned by what has happened so suddenly, that we are in a state of denial, and then anger. We need to turn that into something positive.
Dennis McCarthy, a great opponent of copyright extension, remarked that the situation today is like after the great dams were built in the Sierra mountains. The public domain and the environment were ruined for many years. The copyright extension will last for the next 20 years too, similarly retarding the flow of creative expression. Many people were angry at this assault on our common property, but protests did no good. It was only after the protests ended that a Nature Conservancy was formed to prevent such assaults in the future, and preserve the public domain for our common welfare.
A Book Conservancy could preserve intellectual property and the original idea of copyright. It could accept tax-deductible donations of licenses to publish online. It could accept donations of money to buy up licenses of copyrighted works. It could serve as a clearing house for "open source" or "copy-left" online works. It would do away with the temptation to commit digital piracy.
We should not create enemies of our friends the authors and songwriters and bookstores and small publishers. We should create a Book Conservancy so they can donate or sell licenses for online publication, and permit continued public access to works even when print publishers no longer find them profitable. We should not allow obsolete technology and business models to ruin the great work we have created on the World Wide Web. We must take advantage of our friendships and online communities and use our distributed computer power to create even more great works for years to come.
If you help to spread the word and contribute your own ideas then maybe we can make something out of all this together. Thanks for reading!