Selected Essays on Technology, Creativity, Copyright and the Future of the Future



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The world's governments might have bought into the old myth of the information economy, but not so much that they're willing to ban the PC and the Internet.

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Downloads Give Amazon Jungle Fever

(Originally published in The Guardian, December 11, 2007)

Let me start by saying that I love Amazon. I buy everything from books to clothes to electronics to medication to food to batteries to toys to furniture to baby supplies from the company. I once even bought an ironing board on Amazon. No company can top them for ease of use or for respecting consumer rights when it comes to refunds, ensuring satisfaction, and taking good care of loyal customers.

As a novelist, I couldn't be happier about Amazon's existence. Not only does Amazon have a set of superb recommendation tools that help me sell books, but it also has an affiliate program that lets me get up to 8.5% in commissions for sales of my books through the site - nearly doubling my royalty rate.

As a consumer advocate and activist, I'm delighted by almost every public policy initiative from Amazon. When the Author's Guild tried to get Amazon to curtail its used-book market, the company refused to back down. Founder Jeff Bezos (who is a friend of mine) even wrote, "when someone buys a book, they are also buying the right to resell that book, to loan it out, or to even give it away if they want. Everyone understands this."

More recently, Amazon stood up to the US government, who'd gone on an illegal fishing expedition for terrorists (TERRORISTS! TERRORISTS! TERRORISTS!) and asked Amazon to turn over the purchasing history of 24,000 Amazon customers. The company spent a fortune fighting for our rights, and won.

It also has a well-deserved reputation for taking care over copyright "takedown" notices for the material that its customers post on its site, discarding ridiculous claims rather than blindly acting on every single notice, no matter how frivolous.

But for all that, it has to be said: Whenever Amazon tries to sell a digital download, it turns into one of the dumbest companies on the web.

Take the Kindle, the $400 handheld ebook reader that Amazon shipped recently, to vast, ringing indifference.

The device is cute enough - in a clumsy, overpriced, generation-one kind of way - but the early adopter community recoiled in horror at the terms of service and anti-copying technology that infected it. Ebooks that you buy through the Kindle can't be lent or resold (remember, "when someone buys a book, they are also buying the right to resell that book...Everyone understands this.")

Mark Pilgrim's "The Future of Reading" enumerates five other Kindle showstoppers: Amazon can change your ebooks without notifying you or getting your permission; and if you violate any of the "agreement", it can delete your ebooks, even if you've paid for them, and you get no appeal.

It's not just the Kindle, either. Amazon Unbox, the semi-abortive video download service, shipped with terms of service that included your granting permission for Amazon to install any software on your computer, to spy on you, to delete your videos, to delete any other file on your hard drive, to deny you access to your movies if you lose them in a crash. This comes from the company that will cheerfully ship you a replacement DVD if you email them and tell them that the one you just bought never turned up in the post.

Even Amazon's much-vaunted MP3 store comes with terms of service that prevent lending and reselling.

I am mystified by this. Amazon is the kind of company that every etailer should study and copy - the gold standard for e-commerce. You'd think that if there was any company that would intuitively get the web, it would be Amazon.

What's more, this is a company that stands up to rightsholder groups, publishers and the US government - but only when it comes to physical goods. Why is it that whenever a digital sale is in the offing, Amazon rolls over on its back and wets itself?

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What's the Most Important Right Creators Have?

(Originally published as "How Big Media's Copyright Campaigns Threaten Internet Free Expression," InformationWeek, November 5, 2007)


Any discussion of "creator's rights" is likely to be limited to talk about copyright, but copyright is just a side-dish for creators: the most important right we have is the right to free expression. And these two rights are always in tension.

Take Viacom's claims against YouTube. The entertainment giant says that YouTube has been profiting from the fact that YouTube users upload clips from Viacom shows, and they demand that YouTube take steps to prevent this from happening in the future. YouTube actually offered to do something very like this: they invited Viacom and other rightsholders to send them all the clips they wanted kept offline, and promised to programatically detect these clips and interdict them.

But Viacom rejected this offer. Rather, the company wants YouTube to just figure it out, determine a priori which video clips are being presented with permission and which ones are not. After all, Viacom does the very same thing: it won't air clips until a battalion of lawyers have investigated them and determined whether they are lawful.

But the Internet is not cable television. Net-based hosting outfits -- including YouTube, Flickr, Blogger, Scribd, and the Internet Archive -- offer free publication venues to all comers, enabling anyone to publish anything. In 1998's Digital Millennium Copyright Act, Congress considered the question of liability for these companies and decided to offer them a mixed deal: hosting companies don't need to hire a million lawyers to review every blog-post before it goes live, but rightsholders can order them to remove any infringing material from the net just by sending them a notice that the material infringes.

This deal enabled hosting companies to offer free platforms for publication and expression to everyone. But it also allowed anyone to censor the Internet, just by making claims of infringement, without offering any evidence to support those claims, without having to go to court to prove their claims (this has proven to be an attractive nuisance, presenting an irresistible lure to anyone with a beef against an online critic, from the Church of Scientology to Diebold's voting machines division).

The proposal for online hosts to figure out what infringes and what doesn't is wildly impractical. Under most countries' copyright laws, creative works receive a copyright from the moment that they are "fixed in a tangible medium" (hard drives count), and this means that the pool of copyrighted works is so large as to be practically speaking infinite. Knowing whether a work is copyrighted, who holds the copyright, and whether a posting is made with the rightsholder's permission (or in accord with each nation's varying ideas about fair use) is impossible. The only way to be sure is to start from the presumption that each creative work is infringing, and then make each Internet user prove, to some lawyer's satisfaction, that she has the right to post each drib of content that appears on the Web.

Imagine that such a system were the law of the land. There's no way Blogger or YouTube or Flickr could afford to offer free hosting to their users. Rather, all these hosted services would have to charge enough for access to cover the scorching legal bills associated with checking all material. And not just the freebies, either: your local ISP, the servers hosting your company's website or your page for family genealogy: they'd all have to do the same kind of continuous checking and re-checking of every file you publish with them.

It would be the end of any publication that couldn't foot the legal bills to get off the ground. The multi-billion-page Internet would collapse into the homogeneous world of cable TV (remember when we thought that a "500-channel universe" would be unimaginably broad? Imagine an Internet with only 500 "channels!"). From Amazon to Ask A Ninja, from Blogger to The Everlasting Blort, every bit of online content is made possible by removing the cost of paying lawyers to act as the Internet's gatekeepers.

This is great news for artists. The traditional artist's lament is that our publishers have us over a barrel, controlling the narrow and vital channels for making works available -- from big gallery owners to movie studios to record labels to New York publishers. That's why artists have such a hard time negotiating a decent deal for themselves (for example, most beginning recording artists have to agree to have money deducted from their royalty statements for "breakage" of records en route to stores -- and these deductions are also levied against digital sales through the iTunes Store!).

But, thanks to the web, artists have more options than ever. The Internet's most popular video podcasts aren't associated with TV networks (with all the terrible, one-sided deals that would entail), rather, they're independent programs like RocketBoom, Homestar Runner, or the late, lamented Ze Frank Show. These creators -- along with all the musicians, writers, and other artists using the net to earn their living -- were able to write their own ticket. Today, major artists like Radiohead and Madonna are leaving the record labels behind and trying novel, net-based ways of promoting their work.

And it's not just the indies who benefit: the existence of successful independent artists creates fantastic leverage for artists who negotiate with the majors. More and more, the big media companies' "like it or leave it" bargaining stance is being undermined by the possibility that the next big star will shrug, turn on her heel, and make her fortune without the big companies' help. This has humbled the bigs, making their deals better and more artist-friendly.

Bargaining leverage is just for starters. The greatest threat that art faces is suppression. Historically, artists have struggled just to make themselves heard, just to safeguard the right to express themselves. Censorship is history's greatest enemy of art. A limited-liability Web is a Web where anyone can post anything and reach everyone.

What's more, this privilege isn't limited to artists. All manner of communication, from the personal introspection in public "diaries" to social chatter on MySpace and Facebook, are now possible. Some artists have taken the bizarre stance that this "trivial" matter is unimportant and thus a poor excuse for allowing hosted services to exist in the first place. This is pretty arrogant: a society where only artists are allowed to impart "important" messages and where the rest of us are supposed to shut up about our loves, hopes, aspirations, jokes, family and wants is hardly a democratic paradise.
Artists are in the free expression business, and technology that helps free expression helps artists. When lowering the cost of copyright enforcement raises the cost of free speech, every artist has a duty to speak out. Our ability to make our art is inextricably linked with the billions of Internet users who use the network to talk about their lives.

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Giving it Away

(Originally published in Forbes.com, December 2006)

I've been giving away my books ever since my first novel came out, and boy has it ever made me a bunch of money.

When my first novel, Down and Out in the Magic Kingdom, was published by Tor Books in January 2003, I also put the entire electronic text of the novel on the Internet under a Creative Commons License that encouraged my readers to copy it far and wide. Within a day, there were 30,000 downloads from my site (and those downloaders were in turn free to make more copies). Three years and six printings later, more than 700,000 copies of the book have been downloaded from my site. The book's been translated into more languages than I can keep track of, key concepts from it have been adopted for software projects and there are two competing fan audio adaptations online.

Most people who download the book don't end up buying it, but they wouldn't have bought it in any event, so I haven't lost any sales, I've just won an audience. A tiny minority of downloaders treat the free e-book as a substitute for the printed book--those are the lost sales. But a much larger minority treat the e-book as an enticement to buy the printed book. They're gained sales. As long as gained sales outnumber lost sales, I'm ahead of the game. After all, distributing nearly a million copies of my book has cost me nothing.

The thing about an e-book is that it's a social object. It wants to be copied from friend to friend, beamed from a Palm device, pasted into a mailing list. It begs to be converted to witty signatures at the bottom of e-mails. It is so fluid and intangible that it can spread itself over your whole life. Nothing sells books like a personal recommendation--when I worked in a bookstore, the sweetest words we could hear were "My friend suggested I pick up...." The friend had made the sale for us, we just had to consummate it. In an age of online friendship, e-books trump dead trees for word of mouth.

There are two things that writers ask me about this arrangement: First, does it sell more books, and second, how did you talk your publisher into going for this mad scheme?

There's no empirical way to prove that giving away books sells more books--but I've done this with three novels and a short story collection (and I'll be doing it with two more novels and another collection in the next year), and my books have consistently outperformed my publisher's expectations. Comparing their sales to the numbers provided by colleagues suggests that they perform somewhat better than other books from similar writers at similar stages in their careers. But short of going back in time and re-releasing the same books under the same circumstances without the free e-book program, there's no way to be sure.

What is certain is that every writer who's tried giving away e-books to sell books has come away satisfied and ready to do it some more.

How did I talk Tor Books into letting me do this? It's not as if Tor is a spunky dotcom upstart. They're the largest science fiction publisher in the world, and they're a division of the German publishing giant Holtzbrinck. They're not patchouli-scented info-hippies who believe that information wants to be free. Rather, they're canny assessors of the world of science fiction, perhaps the most social of all literary genres. Science fiction is driven by organized fandom, volunteers who put on hundreds of literary conventions in every corner of the globe, every weekend of the year. These intrepid promoters treat books as markers of identity and as cultural artifacts of great import. They evangelize the books they love, form subcultures around them, cite them in political arguments, sometimes they even rearrange their lives and jobs around them.

What's more, science fiction's early adopters defined the social character of the Internet itself. Given the high correlation between technical employment and science fiction reading, it was inevitable that the first nontechnical discussion on the Internet would be about science fiction. The online norms of idle chatter, fannish organizing, publishing and leisure are descended from SF fandom, and if any literature has a natural home in cyberspace, it's science fiction, the literature that coined the very word "cyberspace."

Indeed, science fiction was the first form of widely pirated literature online, through "bookwarez" channels that contained books that had been hand-scanned, a page at a time, converted to digital text and proof-read. Even today, the mostly widely pirated literature online is SF.

Nothing could make me more sanguine about the future. As publisher Tim O'Reilly wrote in his seminal essay, Piracy is Progressive Taxation, "being well-enough known to be pirated [is] a crowning achievement." I'd rather stake my future on a literature that people care about enough to steal than devote my life to a form that has no home in the dominant medium of the century.

What about that future? Many writers fear that in the future, electronic books will come to substitute more readily for print books, due to changing audiences and improved technology. I am skeptical of this--the codex format has endured for centuries as a simple and elegant answer to the affordances demanded by print, albeit for a relatively small fraction of the population. Most people aren't and will never be readers--but the people who are readers will be readers forever, and they are positively pervy for paper.

But say it does come to pass that electronic books are all anyone wants.

I don't think it's practical to charge for copies of electronic works. Bits aren't ever going to get harder to copy. So we'll have to figure out how to charge for something else. That's not to say you can't charge for a copy-able bit, but you sure can't force a reader to pay for access to information anymore.

This isn't the first time creative entrepreneurs have gone through one of these transitions. Vaudeville performers had to transition to radio, an abrupt shift from having perfect control over who could hear a performance (if they don't buy a ticket, you throw them out) to no control whatsoever (any family whose 12-year-old could build a crystal set, the day's equivalent of installing file-sharing software, could tune in). There were business models for radio, but predicting them a priori wasn't easy. Who could have foreseen that radio's great fortunes would be had through creating a blanket license, securing a Congressional consent decree, chartering a collecting society and inventing a new form of statistical mathematics to fund it?

Predicting the future of publishing--should the wind change and printed books become obsolete--is just as hard. I don't know how writers would earn their living in such a world, but I do know that I'll never find out by turning my back on the Internet. By being in the middle of electronic publishing, by watching what hundreds of thousands of my readers do with my e-books, I get better market intelligence than I could through any other means. As does my publisher. As serious as I am about continuing to work as a writer for the foreseeable future, Tor Books and Holtzbrinck are just as serious. They've got even more riding on the future of publishing than me. So when I approached my publisher with this plan to give away books to sell books, it was a no-brainer for them.

It's good business for me, too. This "market research" of giving away e-books sells printed books. What's more, having my books more widely read opens many other opportunities for me to earn a living from activities around my writing, such as the Fulbright Chair I got at USC this year, this high-paying article in Forbes, speaking engagements and other opportunities to teach, write and license my work for translation and adaptation. My fans' tireless evangelism for my work doesn't just sell books--it sells me.

The golden age of hundreds of writers who lived off of nothing but their royalties is bunkum. Throughout history, writers have relied on day jobs, teaching, grants, inheritances, translation, licensing and other varied sources to make ends meet. The Internet not only sells more books for me, it also gives me more opportunities to earn my keep through writing-related activities.

There has never been a time when more people were reading more words by more authors. The Internet is a literary world of written words. What a fine thing that is for writers.

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Science Fiction is the Only Literature People Care Enough About to Steal on the Internet

(Originally published in Locus Magazine, July 2006)

As a science fiction writer, no piece of news could make me more hopeful. It beats the hell out of the alternative -- a future where the dominant, pluripotent, ubiquitous medium has no place for science fiction literature.

When radio and records were invented, they were pretty bad news for the performers of the day. Live performance demanded charisma, the ability to really put on a magnetic show in front of a crowd. It didn't matter how technically accomplished you were: if you stood like a statue on stage, no one wanted to see you do your thing. On the other hand, you succeeded as a mediocre player, provided you attacked your performance with a lot of brio.

Radio was clearly good news for musicians -- lots more musicians were able to make lots more music, reaching lots more people and making lots more money. It turned performance into an industry, which is what happens when you add technology to art. But it was terrible news for charismatics. It put them out on the street, stuck them with flipping burgers and driving taxis. They knew it, too. Performers lobbied to have the Marconi radio banned, to send Marconi back to the drawing board, charged with inventing a radio they could charge admission to. "We're charismatics, we do something as old and holy as the first story told before the first fire in the first cave. What right have you to insist that we should become mere clerks, working in an obscure back-room, leaving you to commune with our audiences on our behalf?"

Technology giveth and technology taketh away. Seventy years later, Napster showed us that, as William Gibson noted, "We may be at the end of the brief period during which it is possible to charge for recorded music." Surely we're at the end of the period where it's possible to exclude those who don't wish to pay. Every song released can be downloaded gratis from a peer-to-peer network (and will shortly get easier to download, as hard-drive price/performance curves take us to a place where all the music ever recorded will fit on a disposable pocket-drive that you can just walk over to a friend's place and copy).

But have no fear: the Internet makes it possible for recording artists to reach a wider audience than ever dreamt of before. Your potential fans may be spread in a thin, even coat over the world, in a configuration that could never be cost-effective to reach with traditional marketing. But the Internet's ability to lower the costs for artists to reach their audiences and for audiences to find artists suddenly renders possible more variety in music than ever before.

Those artists can use the Internet to bring people back to the live performances that characterized the heyday of Vaudeville. Use your recordings -- which you can't control -- to drive admissions to your performances, which you can control. It's a model that's worked great for jam bands like the Grateful Dead and Phish. It's also a model that won't work for many of today's artists; 70 years of evolutionary pressure has selected for artists who are more virtuoso than charismatic, artists optimized for recording-based income instead of performance-based income. "How dare you tell us that we are to be trained monkeys, capering on a stage for your amusement? We're not charismatics, we're white-collar workers. We commune with our muses behind closed doors and deliver up our work product when it's done, through plastic, laser-etched discs. You have no right to demand that we convert to a live-performance economy."

Technology giveth and technology taketh away. As bands on MySpace -- who can fill houses and sell hundreds of thousands of discs without a record deal, by connecting individually with fans -- have shown, there's a new market aborning on the Internet for music, one with fewer gatekeepers to creativity than ever before.

That's the purpose of copyright, after all: to decentralize who gets to make art. Before copyright, we had patronage: you could make art if the Pope or the king liked the sound of it. That produced some damned pretty ceilings and frescos, but it wasn't until control of art was given over to the market -- by giving publishers a monopoly over the works they printed, starting with the Statute of Anne in 1710 -- that we saw the explosion of creativity that investment-based art could create. Industrialists weren't great arbiters of who could and couldn't make art, but they were better than the Pope.

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