Are eBooks Books and eLibraries Libraries?

A pending lawsuit seeks to settle those questions.

In an op-ed at Inside Higher Ed, a team of distinguished librarians argues, “The Internet Archive Is a Library.”

The Internet Archive, a nonprofit library in San Francisco, has grown into one of the most important cultural institutions of the modern age. What began in 1996 as an audacious attempt to archive and preserve the World Wide Web has grown into a vast library of books, musical recordings and television shows, all digitized and available online, with a mission to provide “universal access to all knowledge.”

Right now, we are at a pivotal stage in a copyright infringement lawsuit against the Internet Archive, still pending, brought by four of the biggest for-profit publishers in the world, who have been trying to shut down core programs of the archive since the start of the pandemic. For the sake of libraries and library users everywhere, let’s hope they don’t succeed.

You’ve probably heard of Internet Archive’s Wayback Machine, which archives billions of webpages from across the globe. Fewer are familiar with its other extraordinary collections, which include 41 million digitized books and texts, with more than three million books available to borrow. To make this possible, Internet Archive uses a practice known as controlled digital lending,” “whereby a library owns a book, digitizes it, and loans either the physical book or the digital copy to one user at a time.”

Despite its incredible library collections, which serve the needs of millions of people, Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc., and Penguin Random House assert that the Internet Archive is not a real library.

In their lawsuit against the Internet Archive, which could extract millions of dollars from the nonprofit organization, the publishers claim that the Internet Archive “badly misleads the public and boldly misappropriates the goodwill that libraries enjoy and have legitimately earned.” In their view, the archive’s “efforts to brand itself as a library” are part of a scheme to “fraudulently mislead” people, circumvent copyright law and limit how much profit publishers can extract from the ebook market. They describe the Internet Archive as a “pirate site” and its business model as “parasitic and illegal” and characterize controlled digital lending as “an invented paradigm that is well outside copyright law.”

The Internet Archive, in turn, argues that the practice of controlled digital lending constitutes fair use under copyright law, and asserts that “libraries have been practicing CDL in one form or another for more than a decade, and hundreds of libraries use it to lend books digitally today.”

To say the least, the language used by the publishers is wildly over the top. There’s rather clearly no intent on the part of the Internet Archive to mislead people, fraudulently or otherwise. But that doesn’t preclude its practices being outside copyright law. And, rather plainly, its existence puts a damper on people’s willingness to pay publishers money for ebooks.

As described, though, the Internet Archive isn’t a “pirate site.” It pays for the content it lends out. And, crucially, if it only lends one copy to one person at a time—as opposed to allowing an infinite number of people to download and keep a copy for themselves—it sounds very much like how libraries have operated for centuries.

Why is it so important to the publishers that the Internet Archive not be identified as a library? Primarily because Congress has long recognized the valuable role that libraries play in our copyright system and has created special allowances in the law for their work. In this suit, the publishers seek to redefine the Internet Archive on their own terms and, in so doing, deny it the ability to leverage the same legal tools that thousands of other libraries use to lend and disseminate materials to our users.

The argument that the Internet Archive isn’t a library is wrong. If this argument is accepted, the results would jeopardize the future development of digital libraries nationwide. The Internet Archive is the most significant specialized library to emerge in decades. It is one of the only major memory institutions to be created from the emergence of the internet. It is, and continues to be, a modern-day cultural institution built intentionally in response to the technological revolution through which we’ve lived.

Libraries are defined by collections, services and values. In The Librarian’s Book of Lists (ALA, 2010), George M. Eberhart offers this definition: “A library is a collection of resources in a variety of formats that is (1) organized by information professionals or other experts who (2) provide convenient physical, digital, bibliographic, or intellectual access and (3) offer targeted services and programs (4) with the mission of educating, informing, or entertaining a variety of audiences (5) and the goal of stimulating individual learning and advancing society as a whole.”

The Internet Archive has all these characteristics. It is a one-of-a-kind independent research library, with its holdings fully available in digital form. Its substantial physical and digital collections are unique. It employs librarians and other information professionals. It is open to all interested readers. It cooperates with peer libraries in support of archiving the information and contemporary discourse as manifested in the World Wide Web. It has an active community of researchers who depend on its collections. And it is an engaged, responsive, resource-sharing partner to hundreds of peer libraries. It is also now an integral part of the interlibrary loan system, sharing its holdings with other libraries worldwide. It shares the keystone values of all libraries: preservation, access, privacy, intellectual freedom, diversity, lifelong learning and the public good. And it does all this without commercial motive as a mission-driven not-for-profit organization.

Because my main interaction with the Internet Archive has been the aforementioned Wayback Machine—which is invaluable—I had little idea it did all of these things, certainly not to that level. So, it’s rather clearly a library. But, again, it’s plausible that eBooks aren’t accounted for under existing laws and regulations and the practices of this particular library—accessible as it is to anyone with a decent computer and Internet connection—unfairly infringe on rightsholders. And, alas, the op-ed doesn’t address that point.

Writing at The Nation, journalist Maria Bustillos argues the importance of digital preservation in an essay titled “Just Because ChatBots Can’t Think Doesn’t Mean They Can’t Lie.” It begins with a dissection of a weird blog post, since taken down, by George Mason economic Tyler Cowen and the fact that ChatGPT and like programs have filled the Web with nonsense, making Google searches much less reliable than they once were. She argues that being able to easily access any book in the world is a powerful antidote to that.

[I]t took me less than two minutes to access the original, correct, searchable text of The Advancement of Learning at the Internet Archive’s Open Library—for now, that is.

Unless the publishers’ lawsuit against the Internet Archive fails, that free, searchable online book will disappear—along with many millions of other valuable resources currently held at the Open Library. And until it is discovered and challenged, some incalculable amount of false information at Google will likely remain. (The Retreat of Learning, you might call it.)

The outcome of the lawsuit, hinging as it does on defining the legal ownership of digital books, may well determine the right of libraries to own and lend from their own collections, freely and without interference—whether those books are on paper, or digital.

At the heart of the dispute is the publishers’ contention that “ebooks are a fundamentally different products from physical book.” The Internet Archive loans its ebooks to patrons by scanning a paper book in its collection, storing away the paper copy, and loaning just the scan to one patron at a time, a common library practice known as Controlled Digital Lending, or CDL. The publishers claim that these ebooks are “infringing copies of the Publishers’ works that directly compete with the Publishers’ well-established markets for authorized consumer and library ebooks.”

So, this is indeed something different than what I understand to be the normal practice of libraries. (But I may be woefully out of date!) The Internet Archive is not lending either physical books or eBooks but rather scanned copies (PDFs?) of physical books. I have no idea what the law is on this practice.

But in its brief in opposition to the publishers, the Internet Archive argues that its model preserves traditional library practice in a digital world. By conflating licensed ebooks with the Open Library’s scans of physical books, they argue, the publishers expose the lawsuit’s true goal: “Plaintiffs would like to force libraries and their patrons into a world in which books can only be accessed, never owned, and in which availability is subject to the rightsholders’ whim.”

My university library subscribes to various databases of eBooks. They come with limitations as to how long they may be “checked out,” how many pages may be printed, etc. I don’t like that. But I’m hard-pressed to come up with a reason why the rights owner can’t put such restrictions on its properties.

In effect, the Internet Archive is fighting to prevent the devolution of ebooks into Netflix-like, un-ownable licensed products. An “authorized” licensed book that can’t be owned outright isn’t fundamentally a book at all; books that can only be licensed are impermanent object that can disappear from the virtual shelves of libraries for any number of reasons.

Again, I don’t like this. I find it a little creepy that Netflix can go back and effectively change the past, whether it’s subtle things like changing the name of an actor retroactively or simply deleting scenes or entire episodes that have retrospectively become controversial. But I’m not sure that’s fundamentally different from George Lucas’ multiple revisions of the Star Wars canon or publishers bowdlerizing old books to conform to modern sensibilities.

The stakes in this lawsuit have become clearer in the years since it was filed, as attacks against the freedom of individuals to read, write, teach, and learn have escalated—shading, not infrequently now, into threats of violence: Florida Governor Ron DeSantis taking aim at academic freedom on multiple fronts; literal book bannings and library closings; open aggression against school board members and librarians. Do we want to live in a world where books can disappear with one click of DeSantis’s mouse?

While I find DeSantis’ actions deplorable, unless he’s bought Amazon, I suspect the books in question will continue to exist.

Jennie Rose Halperin, the director of Library Futures, a digital library policy and advocacy organization, told me: “If libraries do not maintain the right to purchase and lend materials digitally as well as physically on terms that are equitable and fair to the public, we risk further exacerbating divides in our democracy and society, as well as the continued privatization of information access. Just because a book is digital does not make it licensed software—a book is a book, in whatever form it takes.”

But that’s rather the question, no?

We decided, roughly a quarter century ago, that a digital copy of a song or collection of songs is different from a physical record or compact disc of the same material.

Many of us of a certain age grew up recording songs off of the radio onto cassette tapes or even copying friends’ entire cassette tapes onto our own cassette tapes. While the record companies, songwriters, and artists presumably disliked that practice, it was considered legal to do so unless it was done at scale. That is, while I could make copies for personal use I couldn’t make a hundred copies of an album and then sell them.

In the late 1990s, though, Napster and other peer-to-peer “sharing” applications upended that model. Suddenly, anyone with the equipment to do so could transform their entire music collection to digital files and then put them onto the Internet for anyone to download. Conceptually, it was no different than recording a buddy’s copy of the latest hit album. Economically, of course, it was radically different: it was piracy.

Napster could make many of the claims that the Internet Archive and its supporters make now. While its existence surely cut into the sales of “Livin’ la Vida Loca,” it was also a great way to find obscure songs that were no longer in print. Still, it was only a matter of months before the Recording Industry Association of America filed suit.

Libraries, it’s clear, need their traditional statutory protections now more than ever. The right of first sale, which allows libraries to own and loan the books in their own collections, in particular, must be preserved for digital books as well as print ones.

Although, again, the Internet Archive isn’t buying digital books—it’s copying print books into digital form.

But not every library appears to understand these stakes. Vermont State University recently announced that it will be closing all its physical libraries and moving to an “all-digital” model, ostensibly to save money—though ebook price gouging scandals have been plaguing libraries and universities for years, prompting ongoing fights in the courts.

If Vermont State University’s plan takes effect this summer, as scheduled—and at the time of writing, there’s been no indication that they’re backing down—we’ll be seeing a whole university system at the mercy of publishers who can remove library access to any book they please, at the drop of a hat. These are economic, as well as political, disasters waiting to happen.

As Internet Archive founder Brewster Kahle wrote in an e-mail: “If the library only negotiates access licenses for their students to view publishers’ database products, is it a library anymore? Or is it a customer service department for corporate database products?”

I agree that there’s something to be said for having a “permanent” copy of something.

Then again, the downside is rather obvious. Owing print copies is expensive, in that they have to not only be purchased but maintained. Someone has to physically check them in and out. They get worn out and have to be replaced or repaired. They get lost, stolen, or misplaced. Further, in many cases, with relatively rare exception, they simply become obsolete in short order, becoming museum pieces to be warehoused rather than useful for contemporary research agendas.

Further, as people become more accustomed to doing their research via the Internet, there’s simply less demand for physical books. I walk past my university library on the way to and from my car daily. I seldom go inside. I don’t believe I’ve checked out a book or looked at a physical journal in the nearly ten years I’ve worked there.

Indeed, I don’t know whether the library even still subscribes to hard copies of academic journals, which must then be bound at the end of the year. I seriously doubt it. And the prices for access to journal databases constantly go up, too. It’s not immediately obvious to me why books are fundamentally different from journal articles in this regard.

Her closing argument is more aesthetic and economic than academic:

In my lifetime, the tension between commercial and cultural imperatives in the world of books has never been more stark.

The future of digital culture must not be left in the hands of commercial interests, because corporations don’t protect or develop culture: They sell it. Which is fine, and healthy, so long as businesses stay in their lane—but they don’t. Again and again, corporate overreach like the lawsuit against the Internet Archive has shown that where there is more money to be made, business will all too happily interfere with schools, universities, and libraries—no matter the cost to the quality or utility or posterity of education, or art, or literature.

Hollywood and the music industry abound with examples of this imbalance. The stranglehold of commercial imperatives has already radically impoverished culture in the United States, as “works of art” are increasingly considered “intellectual property.” The pressure to produce blockbusters, hits and bestsellers drives the mega-marketing of increasingly mega-boring mega-sequels, sometimes featuring megastars and adapted from mega-bestsellers. New and innovative writers, directors, artists and musicians—who present a greater commercial risk—not only get less and less of the cultural pie; they have a harder time even getting to the table where the pie is cut. The desire to squeeze more and more profits out of ever-lengthening copyright terms means, too, that new artists are prevented from creating meaningful responses to the masterworks of the past—while the culture steadily grows poorer and poorer. Everywhere you look, considerations of profit are encroaching on innovation and creativity.

Movies have pretty much always been made at the commercial judgment of studio heads. Recorded music has mostly depended on the commercial judgment of label heads. The same has been true of books, which have long required a publishing house to decide there was a sufficient market to invest in the project. If anything, modern technologies have made it easier than ever to bypass these gatekeepers.

And now we have to worry about the safety and freedom of libraries in schools and universities, the integrity of digital archives, and the preservation of digital ownership rights, too. It’s high time for the pendulum to swing toward protecting cultural posterity; the courts should begin by ensuring the preservation of the Internet Archive. 

Again, I find this overwrought.

I hate what DeSantis and others are doing in the culture wars. I suspect that the courts will ultimately limit the power of politicians to interfere in these matters.

As to “digital ownership rights,” the question at hand is precisely, Who owns what? My kids have various games on their Nintendo Switch that we have paid for but that they don’t really own, in the sense that Nintendo could stop supporting them, change fundamental aspects of them the next time they turn the device on and connect them to the Internet, etc. I’m sure I’ve agreed to all of that in some TOS that I didn’t read.

I have all manner of digital files, mostly in PDF, of academic journal and other articles that I’ve preserved for my own use. I suppose I “own” those as much as I own any of the hundreds of print books on my shelves.

With regard to the Internet Archive, we’ll find out whether owning a print copy of the book entitles one to make a digital copy of it and put it on the Internet for all to use. That strikes me as a fairly limited question.

FILED UNDER: *FEATURED, Law and the Courts, Science & Technology, , , , , , , , , , , , , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Sleeping Dog says:

    This is another front in the movement by publishers, manufacturers etc to move from selling a product to a private owner and thereby the owner having the right to use it as you see fit to “licensing” the use of the product that you can use as the licenser determines. Which of course leads to a future revenue stream of license renewal fees and repair revenues.

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  2. Stormy Dragon says:

    We need a wholesale reform of our legal structure for dealing with intellectual property. The current system frequently fails to protect the rights of actual creators to benefit from their work or the general public to access our shared culture and only serves to benefit a handful of large corporations that are able to extract extortionate rents by restricting access to things they had no actual involvement in creating

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  3. James Joyner says:

    @Stormy Dragon: I reject the notion that a publishing house “had no actual involvement in creating” the books they publish. The mere fact that Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc., or Penguin Random House put out a book is a big signal to readers that it’s gone through a serious vetting process. They also provide editorial support that can be exceedingly valuable, marketing, printing, distribution, etc. It’s an expensive undertaking to put out a book.

    Certainly, the move to digital products lessons those costs. I’m bemused that, for example, Nintendo manages to charge the identical price for a physical copy of a game and a digital download, given that the latter takes away manufacturing, shipping, and other distribution costs. But the fact that Nintendo, rather than an individual game designer, is distributing the product is a pretty clear indication that it’s been through a vetting process.

    Further, while publishing houses and the like are necessary for budding creators, I’m not sure that’s the case for established ones. I don’t know why, say, Michael Reynolds and Katherine Applegate still need a publishing house to distribute their works.

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  4. Joe says:

    Speaking of editorial support, @James, I suspect “powerful anecdote” was intended to be “powerful antidote.”

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  5. Modulo Myself says:

    I reject the notion that a publishing house “had no actual involvement in creating” the books they publish. The mere fact that Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc., or Penguin Random House put out a book is a big signal to readers that it’s gone through a serious vetting process. They also provide editorial support that can be exceedingly valuable, marketing, printing, distribution, etc. It’s an expensive undertaking to put out a book.

    Non-fiction books aren’t in general fact-checked by big publishing houses, so the vetting is basically social. What you are getting is confirmation by the market the author is legit. And much of what comes out now–in print or in movies or music is terrible in professional ways that would have dumbfounded a pro 20-30 years ago. Put a Marvel Universe film with 300 or whatever million as budget and then put it next to a standard movie from 1988 and the 1988 movie is going to look amazing simply in contrast. The vetting here is a joke overall.

  6. Argon says:
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  7. BugManDan says:

    The comparison to Napster is not a good one. With Napster, you were downloading and keeping a song forever, thus were stealing it. With Internet Archive, you cannot use the file after a certain number of days (usually 14, sometimes only a couple of hours) unless you renew it. This is the the library model and if you want a music comparison it is closer to Tidal or Spotify or SoundCloud.

    By the way, there are books on Internet Archive that you can download and keep forever. The ones which are out of copyright protection.

    Also of note is that IA also has a huge collection of movies, tv shows, commercials, music, etc. Most, if not all out of copyright protection.

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  8. Argon says:

    @James Joyner:

    I’m bemused that, for example, Nintendo manages to charge the identical price for a physical copy of a game and a digital download…

    I’m bemused by the fact that you can sell or give away your copy of a physical cartridge or a book but not their digital equivalents … Publishers say it’s different because multiple digital copies could be distributed, but then, isn’t that something the DRM they require can be used for?

  9. Jen says:

    Certainly, the move to digital products lessons those costs.

    First, I think you meant “lessens” the costs, and…sort of. It’s cheaper than printing physical books, but not by as much as people think.

    Publishers are clawing for every penny they can. As a library trustee, I can tell you I HATE ebooks. They are more expensive for libraries to purchase (technically, we don’t purchase them, we lease them) and if it’s a popular title once we’ve used our allotted lending quota, we have to re-purchase the title at a HIGHER COST.

    Here’s a good (if salty) description of the ebook system for libraries.

    Then, once you’ve gotten past the nonsense of the books being more expensive and paying for the same title more than once, you have…nothing. With physical books, we can continue to lend them out until they are no longer popular, then we can cull it from the collection and the library’s “Friends” group can sort through those titles and then sell them. Not so with ebooks.

    Here’s some background on the battle between publishers and libraries, FYI:

    https://www.npr.org/2022/11/09/1135639385/libraries-publishers-ebooks-e-books-macmillan-protest-amazon-bezos

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  10. Michael Reynolds says:

    @James Joyner:

    I don’t know why, say, Michael Reynolds and Katherine Applegate still need a publishing house to distribute their works.

    We don’t. Or won’t soon, anyway. We were able to regain publishing rights for two of our series, totaling a couple dozen books. We are setting up a site to sell those directly, as well as small extensions of other series. And we may produce other exclusives.

    That said, I now know intimately what publishers do because I’m now paying to have it done. We needed new covers and book design ~$6000 a book. Concepts, cover palettes, models, etc… Then there’s sales tax collection, and warehousing, and paper stock and on and on. Also having a copy editor (our daughter) go through and look for the small but annoying changes I want to make – an example would be a reference to AOL or to Ally McBeal. Also had her check for anything offensive but nope, not even a trans kid with a very good eye and a definite willingness to embarrass her parents, could find anything outré.

    But yes, writers can survive without publishers. Which is not to say publishers do nothing, but I’d argue they over-charge. We generally get 10% of cover price. About ~40% goes to the retailers. That leaves half for the publisher for supplying design, cover, editing, marketing and publicity. They still pay for largely ineffectual book tours, but in the age of Zoom even that is within our capacity to do.

    So, the bottom line is that publishers pay advances: a quarter of the deal up front, another tranche on delivery of the ms, another tranche on hardcover publication, a final hit on paper publication, and then, if all of that money is earned out, come royalties. It’s about the cash.

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  11. CSK says:

    @Modulo Myself:

    Publishers will run a book by a lawyer to see if there’s anything litigable in it.

  12. Jen says:

    @Michael Reynolds:
    @CSK:

    Do authors receive royalties for books borrowed from the library? Or, is there a different royalty system in place for books purchased for library distribution?

    I’ve always wondered this, but forget to ask whenever I’m in a forum where the question makes sense. It seems to me that if kids come into the library and repeatedly borrow the GONE books, Mr. Reynolds should see that reflected in his earnings, somehow.

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  13. Michael Reynolds says:

    @Jen:
    This is an embarrassing admission, but I don’t know – contracts have changed over the years and one set of contracts will say X, and the next will say, Y.

    In kidlit there are distinct markets, both important: retail and schools/libraries. You can add the Scholastic book fair machine as a third. We want to sell into all three, obviously.

    I will say that early worries about piracy in books faded. The amazing thing is that young readers are the ones most resistant to e-books. They want the object.

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  14. CSK says:

    @Jen: @Michael Reynolds:

    No. You receive a royalty from the copy or copies the library buys. But nothing additional when it’s checked out.

  15. Stormy Dragon says:

    @James Joyner:

    I’m not talking about publishers involvement in putting out new works, I’m talking about corporations like the Tolkein Estate that just sit on half-century old IP and collect rents on things that no one currently involved had anything to do with and which don’t actually create anything, just tax people who do.

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  16. DAllenABQ says:

    This post is darn interesting, and something I would likely not have seen but for this post. No particular comment other than to thank Dr. Joyner.

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  17. Stormy Dragon says:

    @Stormy Dragon:

    The Lord of the Rings is currently scheduled to fully enter public domain in the US on January 1, 2044, which is frankly ridiculous, and that’s assuming no one big corporation tries to get copyrights further extended.

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  18. Gustopher says:

    @James Joyner:

    But the fact that Nintendo, rather than an individual game designer, is distributing the product is a pretty clear indication that it’s been through a vetting process.

    Is it?

    About the only think it indicates is that there haven’t been so many complaints (yet) that they were forced to take it down. You have to squint pretty hard to see that as a vetting process, and even then it’s a very weak one.

  19. Gustopher says:

    @Michael Reynolds:

    The amazing thing is that young readers are the ones most resistant to e-books. They want the object.

    They have more space to store the objects than adults.

    (They also have better eyes, and don’t need to increase font sizes. I could be convinced that publishers should be required to do an ebook version for everything they publish, under the Americans With Disabilities Act.)

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  20. Michael Reynolds says:

    @Stormy Dragon:
    Have you seen Winnie the Pooh: Blood and Honey?

    Hundreds of millions, perhaps billions of dollars in wealth, and thousands of jobs, were created by Winnie. Had there been no copyright protection, the deliberately malicious piece of crap linked above could have come years ago and resulted in all those jobs and all that money not being created. Movie rights to copyrighted material cost money, giving it value which adapters will generally try not to completely fuck up.

    You seem to think this is about you, the consumer. It’s not. No one GAF if you bootleg a digital copy of a book. What we do GAF about is assholes taking our intellectual property and destroying its usefulness while trying to line their own pockets. This is not Big Publishing vs. You, it’s Big Publishing and Authors vs. Hollywood, and then Hollywood vs. Other Hollywood.

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  21. Stormy Dragon says:

    @Michael Reynolds:

    I’ve also heard of The Last Ringbearer, by all accounts a great work of art that’s unavailable in this country because some British nepo babies think they deserve a veto over all of human civilization.

    At some point, once art has been released out into society, it ceases to belong to the artist and should belong to everyone as part of our joint cultural heritage.

    Every other industry manages to thrive while only be able to lock down intellectual property rights for 20 years, I see no reason why art can somehow only survive with 70 years, much less the perpetuities you seem to think you’re entitled to.

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  22. Michael Reynolds says:

    @Stormy Dragon:
    The software analogy is not at all on-point. Software changes by the minute, books do not.

    I don’t know why the people who control the rights to Ringbearer don’t want to license the work. I do know that we got the Peter Jackson LOTR movies because he was able to control the rights. No one is giving Jackson hundreds of millions of dollars in production money if they can’t turn a profit. Exclusivity is necessary or no one invests. Imagine if all Marvel products were public. Billions of dollars would go poof.

    No one builds a house on land anyone can use.

    Now, is 70 years too much? An argument can be made. But the idea that all art should belong to the world is bullshit. My art belongs to me until you pay me. I’m not a public utility.

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  23. Michael Reynolds says:

    @Stormy Dragon:
    One other point: why the fuck can’t the author of Ringbearer write something of her own? You know, an original story that doesn’t rest on another writer’s work? It may be excellent fan fiction, but that’s still what it is.

    Make up your own world, your own characters, your own story. I would cut my arm off before I’d admit to the world that I was so devoid of ideas that I had to rip off some other writer. I’ve authored or co-authored fourteen book series and every single one was original. I don’t need to re-imagine Are You There God, It’s Me Margaret as a Marxist critique of religion because I have what is generally called, ‘an imagination.’ If people do their own work there’s no issue. This is only a problem for the untalented.

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  24. Stormy Dragon says:

    @Michael Reynolds:

    Yes yes, your secret alien invasion conspiracy and people turning into animal stories are completely original and in now way inspired by any of the other secret alien invasion conspiracy and people turning into animal stories written in the thousands of years of human civilization prior to your arrival on the planet.

    I especially admire how you managed to personally invent Greek, Norse, AND Egyptian mythology for the Everworld series. It’s a shame how all those Greeks, Norse, and Egyptians were able to steal your ideas without your permission or pay you a dime. Someone obviously should have stopped them from being able to do that.

    All behold Prometheus, the true font of imagination.

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  25. Gustopher says:

    @Michael Reynolds:

    Have you seen Winnie the Pooh: Blood and Honey?

    The Tao of Pooh has talked a dark turn.

    Hundreds of millions, perhaps billions of dollars in wealth, and thousands of jobs, were created by Winnie. Had there been no copyright protection, the deliberately malicious piece of crap linked above could have come years ago and resulted in all those jobs and all that money not being created.

    A good story/character can survive a poor adaptation. A weak story will be overtaken by the interpretation.

    I do know that we got the Peter Jackson LOTR movies because he was able to control the rights. No one is giving Jackson hundreds of millions of dollars in production money if they can’t turn a profit. Exclusivity is necessary or no one invests.

    Remember when we had multiple movies based on Dangerous Liasons at roughly the same time? The world kept turning.

    They gave Peter Jackson the money to do LOTR in large part because he was Peter Jackson, and he sold them on an idea for an adaptation. And then they gave him money to do The Hobbit.

    I would generally prefer a closed playground while the author is still creating things in that world, and then open it up when they have stopped and are just in the rent-seeking phase. New telling of stories have a lot of value, and we are freezing the touchstones our culture in amber for generations. It’s weird. It’s unlike any other time in our history as a species. Stories are supposed to evolve.

    A version of Gone With The Wind from the standpoint of the slaves would have been utterly transformative while the work was still relevant, but the rights holders would never have allowed it.

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  26. Gustopher says:

    @Michael Reynolds:

    One other point: why the fuck can’t the author of Ringbearer write something of her own? You know, an original story that doesn’t rest on another writer’s work? It may be excellent fan fiction, but that’s still what it is.

    Shakespeare often retold commonly known, frequently retold stories. Easily 3/4ths of his plays are histories or retellings of Greek myths. Is Julius Caesar just fan fiction?

    As books became cheaper, written fiction has taken the place formerly held by folktales and myths. They are a part of our culture, and art (good art, bad art, whatever) is a reflection of and a reinterpretation of that culture.

    And given that half of fantasy books exist in what is superficially the same world — would Ents be out of place in Game of Thrones? What about Airbenders? — it’s not surprising that people would want to combine them, or take themes from one and put them into another.

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  27. CSK says:

    @Gustopher:

    The Wind Done Gone, told from the standpoint of a slave and written by Alice Randall, was published in 2001. The estate of Mitchell sued, and the case was settled in 2002.

    For legal reasons, the book is now identified as a parody on its front cover.

  28. Michael Reynolds says:

    @Stormy Dragon:
    Yes, and it all goes back to Gilgamesh and Homer. You don’t really understand how writing works, dude, or what qualifies as original. By your definition nothing is original because we’re all using words someone else came up with. Like many people you think it’s ‘The Idea.’ Nothing is, ‘the idea,’ everything is ‘the execution.’

    In fact, by your definition all writing is plagiarism. Reductio ad absurdum generally points to a lack of detailed knowledge of the topic. And your mockery looks like the usual jealousy from those unable to create.

    @Gustopher:

    Shakespeare often retold commonly known, frequently retold stories. Easily 3/4ths of his plays are histories or retellings of Greek myths. Is Julius Caesar just fan fiction?

    Julius Caesar was a historical person, not a character. Shakespeare was a man of his time, with the resources he had available, and operating under rules of censorship and in a business that required government (the queen) to approve. None of that applies now.

    @Gustopher:

    And given that half of fantasy books exist in what is superficially the same world — would Ents be out of place in Game of Thrones? What about Airbenders? — it’s not surprising that people would want to combine them, or take themes from one and put them into another.

    ‘Superficially the same world.’ Rather like saying that no one has written new code ever because it’s all in ones and zeroes. Sure, the Mona Lisa looks good, but I’ve see smiling women before.

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  29. Stormy Dragon says:

    @Michael Reynolds:

    Like many people you think it’s ‘The Idea.’ Nothing is, ‘the idea,’ everything is ‘the execution.’

    No, you seem to be the person who thinks this, since you want to lockdown all the ideas to a tiny group of people with money and connections while our culture becomes sterile.

    You, Neil Gaiman, and Marvel and many others all got to have your particular spin on the character of Loki, and the ones that are remembered are the ones with the best executions. That wouldn’t have happened if we were stuck based on the great-great-great-great-grandchildren of whoever originally wrote the Norse Edda to approve each new variation on the character.

    And the fact all those people found inspiration in that character doesn’t mean you’re all devoid of imagination.

    And likewise, I want to see everyone’s executions of Sam and Frodo. Or Batman. Or Darth Vader. Most of them will be crap. Some will be worth experiencing. A few may be so good they end up becoming a part of our collective idea of what that character is.

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  30. Gustopher says:

    @Michael Reynolds:

    ‘Superficially the same world.’ Rather like saying that no one has written new code ever because it’s all in ones and zeroes.

    You mean that in a biting way, but… basically every piece of software in a copy and modification of something else. Shockingly few big jumps forward, and even those end up with clones in a very short timeframe.

    This is both on functionality, and more commonly the actual implementation (open source, woo!)

    Folk music is all about borrowing and blending what came before — you can track “Froggie Went A’Courting” back hundreds of years, and see the offshoots that developed into entirely different songs as people put their own interpretation on things, even once it was getting written down and could have been standardized.

    Shakespeare, as I noted above. The audience wanted those stories, so he churned them out, putting his very unique spin on it.

    Matisse and Picasso’s paintings are basically a dialog between the two of them they ripped each other off so blatantly. The whole history of art is filled with examples like that.

    Religions do this incessantly. The stories of Jesus are an amalgamation of a dozen other dirties, and then you have unauthorized sequels like the Book of Mormon, and then the musical based on that. Some people even took the traditional Jesus line that “the poor will always be with us” as an excuse to say “well, fuck them, they can’t be helped” creating a whole new religion, confusingly with the same name.

    The desire to control the art so closely is really a very recent thing. I don’t think it’s as unambiguously good as you do.

    (We could do without the “fuck the poor” Jesus, admittedly)

    @CSK: 2001 for Gone With The Wind to be told from the standpoint of the slaves is a few decades too late.

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  31. Jen says:

    That wouldn’t have happened if we were stuck based on the great-great-great-great-grandchildren of whoever originally wrote the Norse Edda to approve each new variation on the character.

    Doesn’t it depend on how different things are? The Last Ringbearer seems to pin directly to/on The Lord of the Rings–it cannot exist without that reference point. However, we can–to the distress of many–have both the Twilight books and the 50 Shades books (which are Twilight fanfic).

    So, while 50 Shades is fanfiction and was directly inspired by Twilight, it doesn’t depend on the existence of that series–it actually stands on its own.

    If someone is going to tie their own work directly to something that is currently under copyright, that’s a bit different than Clueless being a retelling of Jane Austen’s Emma.

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  32. Kathy says:

    @Michael Reynolds:

    The software analogy is not at all on-point. Software changes by the minute, books do not.

    Software didn’t use to change quickly.

    I’m sure you recall walking into a store, and buying a box filled with floppies and a manual (and alter smaller boxes with one or two CDs and a manual). And you were stuck with that version until a new one came out.

    Occasionally the larger software companies would issue patches. More often they sold add-ons, or in games expansion packs.

    When the internet became widespread, you were required to activate some software online. Some patches and expansions began to be distributed online too. When broadband became widespread, downloads replaced boxed software, and then it began to change by the minute.

    This wasn’t that long ago. I recall boxed software as late as the mid-2010s.

    And when chatbots replace authors, because they’re cheaper for publishers, and can produce sequel after sequel, ebooks will begin to change by the minute, too.

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  33. Flat Earth Luddite says:

    Thanks, everyone. An interesting topic that I hadn’t thought of in this detail (only insofar as music and photography, my sorta-passions intersected). However, it seems like we’ve largely gotten to the point where MR is talking past Stormy, and vise versa… while Gusty is lighting kitchen matches and tossing them in the bilges. I know I certainly enjoy it!

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  34. Jay L Gischer says:

    @Michael Reynolds:

    But yes, writers can survive without publishers. Which is not to say publishers do nothing, but I’d argue they over-charge.

    This particular statement, and the comment it is in, strongly confirms my priors.

    All that stuff that publishers do has value, but man, is it bloated. And what they do is for them not for you the writer, much less for me the reader.

    And by the way I definitely think that a copyright period should be non-zero, and yet 70 years is definitely too much. I mean, we only give patents 26 years.

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  35. Gustopher says:

    @Jen: 50 Shades of Grey did get edited to rename everyone and take away the vampires (I assume), so it’s not quite fanfic anymore, it just used to be.

    I’ve had an idea in my head for a while about a pornographic “children’s” book called 50 Shades of Blue starring the Smurfs, but I expect it would run into licensing issues.

    “Hi Handy,” Smurfette said, “want me to smurf your pipe?”

    This is what the current copyright regime is denying us.

    There really should be compulsory licensing or something, so people can build off our shared culture and heritage.

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  36. Jen says:

    @Gustopher: That reinforces my point, which was that 50 Shades doesn’t need Twilight to make sense–it’s completely freestanding, which is not the case with The Last Ringbearer, described as an alternative account of/informal sequel to LOTR.

    Allowing both the originator and heirs to protect creative work feels right to me.

  37. Tony W says:

    I have nothing to add except to point out that Baz Lurhmann’s Romeo and Juliet was arguably better than the original, and I’m glad Shakespeare’s descendants were unable to prevent it.

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  38. grumpy realist says:

    I suggest we should do copyright like we do trademarks–but with a twist. Copyright should require renewal every 10 years, together with a fee. There would be no limit to the number of times you could renew your copyright—but the fees would increase exponentially with number of renewals. And if the chain were broken and the copyright wasn’t extended, then the material would fall into the public domain and remain so: no takesies-backsies.

    This would allow for authors to keep their hands on their own property for as long as they wanted–provided they were willing to pay the price and curate the continued renewals.

    This would also get around the present problem we have of not being able to track down the copyright holders of obscure publications from 50 years ago: if the holder isn’t recorded, poof at the next renewal point.

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  39. DrDaveT says:

    Many of us of a certain age grew up recording songs off of the radio onto cassette tapes or even copying friends’ entire cassette tapes onto our own cassette tapes. While the record companies, songwriters, and artists presumably disliked that practice, it was considered legal to do so unless it was done at scale.

    No, it wasn’t. It just wasn’t worth litigating unless it was done at scale. All of us taping music* off the air were breaking the law, and the music labels (and radio stations) would happily have prosecuted if it had been practical for them to do so.

    *Or in my case the complete “Hitchhiker’s Guide to the Galaxy” radio series

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  40. Just Another Ex-Republican says:

    Surprised no one has mentioned Amazon’s 2009 mess around Orwell’s Animal Farm and 1984 ebooks. Big corps are doing their best to get rid of the whole concept of ownership and trying to force licenses and leasing instead (and not just in books, music, or films). If they succeed what initially happened with the recall of those 2 books will become the norm rather than an exception. No thanks.

    Copyright is invaluable and absolutely required. Yet it seems pretty clearly too long at 70 years (or longer with corporations-Mickey Mouse might finally be out of copyright after 95 years in 2024 unless Disney’s lawyers succeed at some new extension or Congressional bribery). Why should Tolkien’s kids have absolute control over derivatives of his work for decades? Whether it be parodies, prequels, sequels, from another POV, or other, his kids aren’t the creator and the fact that some works of his will be under their control for over a century after his death is ridiculous. Sure, his kids (and grandkids, or whoever the rights holders are) should get the royalties for any of the actual books still being sold in perpetuity. But control over derivative or related works…?

    @Michael Reynolds: You said, “Like many people you think it’s ‘The Idea.’ Nothing is, ‘the idea,’ everything is ‘the execution.’”

    That seems to contradict your contention that the author of the Ringbearer lacks imagination and deserves to have his work kept out of circulation. If the idea is nothing and the execution is everything then an alternate telling (an alternate execution, if you will) of the story of LOTR is as artistic and deserving as anything else.

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  41. Jen says:

    @Just Another Ex-Republican:

    Why should Tolkien’s kids have absolute control over derivatives of his work for decades? Whether it be parodies, prequels, sequels, from another POV, or other, his kids aren’t the creator and the fact that some works of his will be under their control for over a century after his death is ridiculous.

    It’s their name, his legacy. I think that copyright should extend for the lifetime of direct inheritors. Once they go, it doesn’t extend down to grandkids, or in the case of those who pass without having children, one generation of whomever they’ve left their estate to. It would be incredibly sad to watch a parent’s work be cannibalized.