Internet piracy and the working writer

As many of you know, Harlan Ellison has been for a few years now embroiled in a long, exhausting, and expensive battle against Internet piracy. I've heard more than a few people wax mocking of Ellison's "Quixotic" battle, and in almost every case, when asked why they think he's wasting his time, energy, and money, they invitably shrug their shoulders and say something profoundly intelligent like "He can't win," or "He's making it into a much bigger problem than it really is," or -- my particular favorite of all the bonehead responses -- "So what if somebody put some of his stories up on their web site or is offering them for download? It's not like he's losing any money because of it."

Of all the types of idiocy that cause me to despair (if not bleed) internally, it's that last, oh-so-smug variety that makes me want to grab a rifle and climb a tower.

It's not like he's losing any money because of it.

In order to help you understand just how insipid a statement that is, I'm not going to speak in generalities; nor should anyone think that I'd dare speak for Mr. Ellison (I like my spine attached to the rest of my body, thank you), no; instead, I'm going to whittle this down to specifics: case in point, the adverse effect that pirating of the written word has on those who make their living through writing: even more specific case in point, myself.

About a month ago, a very fine and conscientious fellow named Eric Collier (who haunts the Shocklines Message Board at http://pub117.ezboard.com/bshocklinesforum) announced that the work of a half dozen or so writers who also frequent the board was being pirated -- some stories were being posted without permission on web sites, while still more stories -- and books -- were being offered via file-sharing services.

Before going any further, understand that I am restricting this argument solely to the illegal pirating of written material -- and for the sake of clarity, we will define "written material" as short stories, novellas, novels, and short story collections. I'm not talking about pop music, movies, or video games, which have radically different profit/income structures than literature. A video game that sells 100,000 copies total is considered a market failure; a book that sells that many copies is considered wildly successful. Furthermore, movies and video games earn profits as rentals, and pop music earns royalties from radio play. Other than rare subsidiary rights sales, literature can only generate profits through sales of books and magazines.

And make no mistake about this next one: if you put a story written by someone else up on a web site without their direct permission or that of their professional representative, and do so without compensating them for the use of that work, or if you offer stories or books written by someone else for free download via a file-sharing service without their direct permission or that of their professional representative, and do so without compensating them for the use of that work, that constitutes an infringement of their copyright, and is piracy, and is illegal. Period.

In case you haven't figured it out yet, I was one of those writers whose work was being illegally pirated, and the moral question of it aside -- I've come to believe that people who engage in illegal pirating of others' copyrighted work subscribe to a code of morality that is, at best, highly selective -- I quickly (and much to my shock) realized just how financially damaging this could be to me.

Understand something: most of the writers whose work you read, whose books you purchase from the paperback shelves, and whose stories all but gurantee you'll buy a copy of the anthology or magazine in which they appear, are not rich.

The vast majority of us do not get Stephen King-, Anne Rice-, or Dean Koontz-level advances for our books (I'm not scorning any of the aformentioned writers, all of whom worked damned long and hard to earn the kind of money they're getting now), no; most of us are lucky to make three months' living expenses from an advance. We also scrabble to find to find time to work on short stories, most of which bring in, on the average, two- to three-hundred bucks a pop, if the markets are strong and pay well.

On the surface, that might look good to a lot of people. A three-thousand dollar advance for a book, three hundred bucks a pop for short stories? Sell a couple of books, a short story a month, that's almost ten thousand dollars a year from your writing; what the hell are you complaining about?

Well, for starters (if I understand the IRS's categorizations correctly), the poverty line starts at nine thousand dollars or less a year. So if you're lucky enough to have the time and energy to write, edit, re-write, and sell two books as well as one dozen short stories over a twelve-month period, you'll be a thousand bucks above the poverty line.

Lucky you. Who wouldn't be envious of a life like that?

Yes, I hear you: You're doing something you love, something you're good at, and something that others are willing to pay you to do; most people would kill to be in your position. Why aren't you grateful?

I am grateful; I'm grateful to have an at-least journeyman ability to tell a decent story, I'm grateful that there are editors and publishers out there who feel my work is worth their advance bucks, and I'm incredibly grateful for those readers who feel that my work is worth their time and money.

However, most people who think it's that easy ("...a couple of books, a short story sale a month...") have never really tried to write a novel or produce quality short stories on a consistent basis. Add to this equation that most of the writers whom you read also hold down at least one other job, and the time devoted to further polishing one's craft is -- at the very least -- cut down by one-third.

Time to get very specific.

I made just over six thousand dollars last year from my writing. Part of that stemmed from the heart attack I had last Septemeber that knocked me on my ass for the better part of four months (and whose subsequent medical bills I'm still trying to get caught up on); I fell behind on writing projects and, as a result, did not have that money coming in.

The best year I've ever had as a writer thus far saw me bring in almost twelve thousand dollars -- and that was only because I was writing full-time like a maniac because my wonderful (now ex-) wife Leslie had a damned good corporate job and could afford to support her (not-so wonderful) hubby while he went at it full-tilt.

Are you getting the idea here? Most of the writers whom you read are not getting rich from their writing. Most of them are holding down at least one other job.

I, personally, am holding down two other jobs; one as an on-line writing instructor, the other as a custodian at a local Jewish temple. I have to do this because of the income I lost as a result of my heart attack; I also have to do it because of the medical bills that resulted from that heart attack; and I also have to do it because, like most of the other writers I know, I ain't getting rich from it. I made just over six grand last year from writing and I owe the government over three hundred dollars in taxes; as I sit here writing this installment, I have about eleven dollars in cash on my person, and not-quite two hundred dollars in my checking account. If I did not split a large apartment with two other people, I would be royally screwed (and, no, this ain't a Pity Party for me; these are just the facts, ma'am.)

Which brings us back to the insipid, It's not like he's losing any money because of it.

Thanks to Eric Collier, I discovered that two of my short stories and one of my books were being illegally pirated via a file-sharer. Now, to be honest, the two short stories that were (and probably still are) being pirated have both been reprinted several times, and I doubt that their being pirated is going to cost me any more reprint sales, but I'm still taking action because it's the book that really infuriates me, and for my own financial safety I cannot afford to be selective.

My new novel, In Silent Graves, is being illegally pirated via file sharers under its original title, The Indifference of Heaven. Some people who have downloaded it -- and are offering it for download -- have made it a point to let others know that this is the same novel. When I expressed anger over this to someone I know, their initial response was along the lines of: Why get upset about it? So a couple dozen people download it, maybe a few more. It's not going to harm your sales or your royalties all that much.

(There I go, up the tower steps, adjusting the scope....)

For the sake of not hurting relations with one of my publishers -- Leisure -- I'm not going to tell you what my advance was on In Silent Graves; just know that, of the the little over six grand I made last year, the advance was part -- but by no means all -- of it; I had several story sales, as well.

And just so you understand how this seemingly "harmless" file-sharing can hurt a writer's livelihood, all of the figures that I state from here on will be rounded up to the nearest tenth cent; yeah, it's oversimplifying things a tad, but I think it will help make the point.

One copy of Graves will set someone back seven dollars. Of that seven dollars, my royalty will be (again, rounding upward) sixty cents.

So, if someone illegally downloads one copy of the book, I'm out sixty cents. Big deal, right?

Keep going.

If ten people illegally download copies of the book, I'm out six dollars. (Six dollars, by the way, would pay for one generic version of a prescription I have to take as a result of my heart attack; six dollars would also pay for the food with which to make my lunch that I take to the temple where I work the second and -- from a financial standpoint -- most primary of my three jobs; writing has now been moved down to the Number Two position, which makes me soul-sick and sad if I think about it too much.) Ten illegally-downloaded or -shared copies of the book is most definitely a deal...maybe not a big deal, but a deal nonetheless.

Keep going.

If one hundred people ilegally download copies of the book, that's sixty dollars that has been taken from my pocket. Try and tell me that you'd be all right with someone stealing sixty dollars from you. And if those one hundred people make the book available to one hundred more, and they in turn make it available to one hundred more...then soon it's conceivable that one thousand people might illegally download the book, at which point I am out six hundred dollars that I bloody well earned; I am out one-tenth of my total income from last year.

How would you feel if a group of people (who aren't associated with the IRS) just offhandedly decided that it was all right for them to steal one-tenth of your yearly income because they felt that what you did for a living wasn't really work, and you made all kinds of money from the advance anyway, and it's information and all information should be free, or whatever bullsh*t justification they use to anchor their highly selective form of morality? (And have you ever noticed that most of these Neolithic dipsh*ts who claim that "...all information should be free..." are usually in the process of shelling out or paying back tens of thousands of dollars for a college education so they can have a goddamn piece of paper to hang on their wall to show that they know what they're talking about because they've Got. A. Degree!? Talk about your "Never the twain shall meet...")

Now do you understand why Harlan Ellison's "Quixotic" battle is. So. Damned. Serious?

It's because if the A**holes aren't stopped, and if the ISPs and file-sharing services that rent them the space in which they practice their piracy are not in some way held accoutable when they fail to take action after being made aware of the problem, then it's only going to get worse, and pretty soon the problem will come to your doorstep, Dear Reader, and you'll be paying double the usual cost of a book just so the publishers can avoid bankruptcy and the writers they publish can struggle tooth and nail to simply remain above the poverty line of income.

Here's a quick test:

If you have ever, at any time and for any reason, offered the work of a writer for free download via a file-sharing service without that writer's direct permission, you are an A**hole.

You are an A**hole because you infringed on that writer's copyright, and by doing so -- whether you've got the guts to cop to it or not -- you stole money from that writer's pocket that they need in order to afford the day-to-day expenses of living.

How the hell would you feel if someone stole from you, and then was too much of a coward to admit to it and so hid themselves behind a lot of double-speak intended to muddy what are otherwise very clear waters?

Goddamned angry is how you'd feel. Angry like Ellison is angry. Angry like I and the other pirated writers are angry. Angry like the readers are going to be angry when they're paying fifteen dollars for a paperback that used to cost only seven bucks.

If you took the earlier test and discovered that you're an A**hole, it is my sincere hope that this writeup has given you both a new perspective and some food for thought, and that you will consider changing your ways.

It also my sincere hope that I will go to the mailbox today and discover a certified check for fifty thousand dollars made out to me from the estate of a rich, reclusive, eccentric uncle I did not know I had.

---

Update: On June 8, 2004, Harlan Ellison settled his lawsuit with AOL, apparently to the satisfaction of both parties. Apparently AOL is paying the court costs as well, because Ellison has pledged to return monies people have donated to the Internet Piracy Fund. In 2002, after two years of court wrangling, the person who pirated his work as well as the news service on which the materials were posted both settled with Ellison.

For perspective, let's deal with copyright infringement separately on legal, moral, and financial planes.

Legally, U.S. Code forbids copyright infringement. A person, by default, has copyright to any and all of his creative work without an application process, without registration, without necessarily intending to have it. Refusing copyright over a work -- passing it into the public domain -- takes more effort from the author than copyrighting it did. Copyright lasts somewhere between 70 and 90 years. And the U.S. forbids copying the work without permission of the copyright holder. Thus far I agree with Braunbeck completely. In fact, I daresay everyone knows the following two facts:

1. That copyright infringement is illegal, and
2. That you'd get away with it.

So let's move on. Morally, the issue becomes cloudy. Our corpus of intellectual property law, including copyright, patents, trademarks, and perhaps trade secrets, exists purely for pragmatic reasons. Thomas Jefferson remarked famously, and in my opinion quite incisively, that

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself, but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it.

He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breath, move, and have our physical being, incapable of confinement or exclusive appropriation.

Inventions then cannot, in nature, be a subject of property.

No one has a fundamental right to ownership over an idea or even creative work. Ideas are non-rivalrous, TJ says -- my use of your idea does not diminish your own use. Therefore we maximize social utility by sharing ideas.

Deontologically, humans have no inherent right to restrict others' access to information, original or not. On the other hand, one might certainly make the case that humans do have an inherent right to learn: to drink from the fountain of wisdom that tropes for the sum of human knowledge. Thus follows public education, free speech doctrine, and widespread respect for human expression and learning.

This point -- that there's no universal, inherent, fundamental human right to restrict others from an idea -- has proven difficult for some readers, so I'll unpack it a little more with an analogy. Let's take any typical good, both rivalrous and excludable: a loaf of bread and a pound of fish. It's rivalrous because, when you eat the food, it diminishes my ability to eat it. And it's excludable because I can prevent you from eating the food: I'll lock it in my kitchen, where you can't get to it.

But imagine, somehow, by narrative fiat if you will, that we define the bread and fish to be non-rivalrous. What does that mean? It means that no matter how many other people eat the fish and the loaf, the same amount remains left over. Our bread and fish have become a bottomless cornucopia; we could feed unlimited throngs of people at no cost. But let's suppose I don't want to end world hunger; instead, I want to keep the food locked in my kitchen and let vast populations continue to starve. Let's even go so far as to imagine that a third-world dictator pays me twenty thousand dollars a year to keep it that way. Would humanity be justified, collectively, in rising up against me and taking the bread? Seizing the fish? Feeding the starving masses at the expense of my claimed right to exclude people from the feast? I think it would, and if you agree, then you understand why there is no inherent human right to own ideas. Non-rivalrousness of a good negates the deontological justification for propriety. In simpler words, if a good can be shared by all without diminishing its utility for any, then it should not be considered property in the traditional sense.

Whence, then, intellectual property law? Ironically, utilitarianism gives us our motivation and justification: when the government grants the individual a limited monopoly over his work, it allows him the ability to profit from it, and an ability to profit becomes an incentive to create. But in an age of moneyed interests and widespread propaganda, we must take care to remember the path we traveled in justifying intellectual property laws: they are entirely utilitarian, hinged on and owing to their ability to incentivise the creation of original work. And they come at a cost: the restriction of the individual's ability to drink freely from the fountain of human knowledge. Their lease on legal life must therefore remain contingent upon the benefits of motivating creation outstripping the costs of restricting access to the fountain.

So when evaluating whether a particular piece of copyright doctrine or even an individual case of copyright infringement are morally sound, we must evaluate the benefit to the individual of accessing the information with respect to the burden to artists' incentives. Subtract A from B, and if we have a positive utile count, then by all means restrict the access with a clear conscience.

This evaluation leads us to our third area of discussion: the finances of copywrong. Here we tend away from the general case and look more closely at the specific case of Braunbeck and his writing.

First we will attempt to evaluate the value a copyright infringer gleans from illegally downloading his work. Let us assume that his book -- which is what Braunbeck says concerns him -- takes between three and four hours to read. Assuming the reader could otherwise spend that time at a minimum wage job and make a total of at least $18 for the same amount of time, it is fair to conclude that he valued his consumption of the work at greater than or equal to $18. (As to the pirate who downloads but doesn't read the book -- well, obviously he has no desire, before or after the download, to purchase it. Therefore he's a zero in both categories, and consequently has committed no moral offense.)

Now, let us evaluate how much the piracy costs Braunbeck. In his writeup, he claims that every download of his book reduces his income by $0.60. But in his calculation, he makes one significant and faulty assumption: that, had the pirate not had illegal access to the work, he would have made a legal purchase instead. Instead, as any Probability 101 class teaches, we must multiply the cost of a lost sale by its probability to get the net expected loss.

So what's the probability that a pirate would otherwise have purchased Braunbeck's book? Consider that he claims that a best-seller achieves only 100,000 sales. We'll (generously) assume that this applies to the U.S. only, and (less generously but by his own admission) assume that Braunbeck's book does not qualify as a best-seller. Of the United States' 280 million citizens, then, less than 100,000 will purchase the book. Therefore, the probability of any single citizen purchasing his book is 100,000 divided by 280,000,000, or 0.000357.

(A note, in the interests of full disclosure: that, right there, was the step that the statisticians among us revile and dispute. I admit my analysis does not meet academic standards of rigor, but I think it's a pretty decent best guess. The figure we're aiming for is the probability that a given pirate, deprived of his means of piracy, would otherwise buy the book. So starting at my figure as a baseline, in which direction is it biased? Readers suggested, essentially, that a pirate willing to hunt down and download Braunbeck's work is more likely to buy the book than someone selected at random from the country's population. This may be, but I contend that most pirates of his work aren't specifically looking for it; rather, they're browsing the stacks on IRC and downloading any/all works that sound vaguely appealing. In this case, without piracy, the individual would never have heard of the work -- or they would turn to another, legal, browsing medium, like the library or a bookstore, where Braunbeck's work would face much stiffer competition from the sum total of published authors (rather than only those who had found their way online). From what I've seen of the dark underbelly of IRC, this casual aisle-browser is closer to reality than the motivated pirate sifting through channel after channel in his search for Braunbeck's work. Also in this analysis, consider that Braunbeck is not a household name, and imagine your own behavior regarding an archive like Project Gutenberg; I imagine most (99.9%+) who go to Project Gutenberg look for a household name like Lewis Carroll or George Orwell and, in the chaos of contemporary digital archives, only stumble upon lesser known authors. In any case, while I believe my number reflects reality, I don't pretend that the analysis used to reach it adhered to principles of unapproachable rigor. But even if the figure is significantly off, my conclusions can afford a very large margin of error. In any case, since it is impossible to calculate the value rigorously, let us continue our odyssey with my figure as a best guess.)

$0.60 * 0.000357 = $0.000214286.

He therefore loses approximately one fiftieth of one cent per incident of copyright infringement. If he finds a single dollar bill on the street, it'll cover his financial losses for another forty-six hundred infringements. Compare that to the $18 the book is worth to the kid who reads it; incurring a dollar loss to copyright infringement means Braunbeck has provided the human race at least $84,000 of utility to others. Eighty-four thousand to one is a damn good return on investment. If, by sacrificing a single dinner, I could deliver a eighty-four thousand meals to people who need them, it would be heinously selfish of me not to do so. Even if I were on the brink of starvation, how could I justify depriving eighty-four thousand other similarly starving people of a meal? I couldn't; that rate of societal return on investment would be too great to ignore. Consequently, neither should Braunbeck.

Though the law must be clear and categorical about the dos and don'ts of copyright, it appears to be absolutely acceptable, morally, to download and read Braunbeck's work. If you like, mail him a penny; that'll cover your infringement and 49 others'.

The subject of copyright law is sure to raise hackles. It addresses interesting questions that drive directly to our self-perception as a civilized people, in a lesser, though similar manner as the debate on abortion.

While cogent arguments have been made on both sides of the situation, irrespective of quotation and an individual's agreement or disagreement with great men of letters, the law of the United States of America is quite clear on this subject. I quote from the website www.ipwatchdog.com, which is one of many one can Google on the topic.

A copyright is a form of intellectual protection that is provided to the authors of “original works of authorship.” The Copyright Act (codified at Title 17 of the United States Code) states that an original work of authorship that is entitled to copyright protection includes literary, dramatic, musical, artistic, and certain other intellectual works, regardless of whether they are published and unpublished. A copyright gives the copyright owner the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

I'm going to type this again, because it's the important part of the American law said simply: An original written work is the property of the copyright holder (initially the creator) who has the exclusive right to distribute copies or display the copyrighted work publicly. The United States is a capitalistic democracy with the idea of personal property as what may be thought of as a sacred tenet of our way of life. We own things in this country. At it's most basic, we own what we create. Protection of the right of the individual to own his ideas, irrespective of their perceived value to others, or the facility by with they may be misappropriated, is a basic human right afforded by this country.

Note that irrespective of an individual's philosophical disagreement with these conditions, they are the law in the United States, and that violating these rules through piracy damages the individual copyright holder by definition. Steal something from Braunbeck, you're breaking the law. You do not get to determine the value. You do not get to distribute his works for your own profit. There is no other interpretation under the current US statues, irrespective of how many cogent points have been made in disagreement.

Recent controversy spawned by Napster and look-alikes have heated this debate. Technology has made intellectual property theft a crime that can be committed unknowingly by kindergarteners. Something has to change. For instance, in this writer's opinion, it is unrealistic for the American recording industry to attempt to enforce its copyright in light of the ease with which their copyrights can be violated--even though it is completely within their right to do so under the laws of the United States. However, as a writer and a technologist, I cannot condone the notion that intellectual property rights have been rendered obsolete by broadband any more than I condone the terroristic acts committed on 9/11/01 because it was easy to hijack and fly airplanes. The fact the crime is simple does not make it correct. The fact the thief perceives a low value to the stolen property is irrelevant.

Some people feel an 8-cell embryo the size of the head of a pin has the value of a blob of pus. Some people think it's a human being.

In the end--it's all about value. If you don't value something, you won't work for money to pay for it. You won't fight for its rights. You simply won't care, and so ownership is meaningless to you. And that's what this idea is about.

At its core, creators of music and film and novels will work to find ways to protect their art for the simple reason that an individual feels he or she deserves to benefit from his or her hard work. Artists value their work. Otherwise they wouldn't do it. Even if they "work for nothing", that effort itself brings value to them. Once there is no value to the individual, the behavior extinguishes. The artist stops making art and becomes a cab driver.

If you have never written a book, or produced a film, or recorded a professional album, you may be gleefully oblivious to the volume of effort an individual expends to produce the output. An author who works 8 hours per day, 7 days per week, for a year to produce a novel has had little time to do anything else. The question he asks the world who might enjoy his work is: don't I have the right to some compensation for my effort, as you would be for the work you put into turning burgers or busing tables at the local diner?

And then how much should Braunbeck be compensated for his hard work?

Fortunately for him, the laws of supply and demand dictate the final value for his effort, not a single consumer.

In Jefferson's utopian society, the inventor would be supported by a strong state infrastructure that would care for his health, feed him, pipe away his sewage, and provide shelter. In reality, an author must provide for these things himself while he persues his chosen profession. Certainly, he could have tried a different profession. He could drive a bus or put tires on tractors. But in your own lifetimes you've witnessed the downfall of societies that did not value individual property, and so free men know instinctively the urge to create and contribute artistically is part of what separates us from the ignorant and the self-destructive. This history teaches us people cannot prosper in a society whose only commerce is theft, piracy, and plagiarism, and that these acts may benefit few, but in the large rob each of us of our essential right to liberty and the free exchange of ideas. For if I cannot be held accountable for my own ideas, then I am likely to put my effort into pursuits that more effectively benefit those for whom I am responsible, and no one else. It's simple personal economics. I have mouths to feed.

As has been the case forever, it will be attractive for simpler minds to convince themselves that theft is right because it's easy. Unfortunately for free men, that's what will change the technology that will make it more difficult to gain access to the art we desire. Copyright protection will become onerous until the technology evolves that allows easy consumption with recognition of ownership. There will always be a plethora of artists who make their work available without any personal compensation. And like all art, some of these will be enjoyable even though they may be consumed by individuals who place no value on the work.

However, if enough of us value an artist's work and are willing to agree to the artist's valuation with money that took our own hard labor to make, it will become our exclusive privilege to consume it. Then you'll have to come to my house to listen to all my CDs and watch my DVDs.

Because my own view is we should support artists by paying them with money that we work for just as as the artist worked to make his art. Exchange of benefit for effort feels inherently, instinctually correct to me. My opinion comes from an individual who works to make a living, and honors others who do. You may have a different opinion.

But if you're American, both of us have the same copyright law to live with, and you'll have an unsatisfactory outcome until the law changes.

I'll go back to writing my book now, which I can only do part time because I need to work to put a roof over my children's heads and food on the table. Unfortunately for me, nobody values my work enough to pay me for it. Cheers.