Just Whose Side Are They On, Anyway?

by Janis Patterson

I’m angry. Again. But this time it is something that really affects all of us and our industry.

The New York District Appeals Court has ruled against the Author’s Guild about Google’s scanning of books. Part of the ruling says :

"…the purpose of copyright law is not to guarantee authors a living, nor is it to give them exclusive control over who uses their work and how. The purpose of the law is to provide an incentive for people to create artistic works because doing this benefits society." 

Excuse me?

We are supposed to be writing for the benefit of society? I hope someone can explain why taking away control of our work and the money it should be generating for us is an incentive for us to ‘create artistic works.’

That kind of thinking smacks of the old idea of writers as starving in a garret while writing something just for the purpose of creating something for the ages. Yes, I know there are some people who call themselves writers who do write for no purpose other than wanting their deathless prose to be read by the general populace, but (and I’m getting snarky here) they usually aren’t very good writers, just wannabes who want to be thought of as a published author no matter what. And they certainly aren’t professional writers.

Most writers I know write not only because they love it, but because it is their job. They expend effort and creativity, and deserve fair recompense. If someone can just come and take something we have worked to create and give it away to all and sundry without our permission or profit, why should we do it? To benefit society? Give me a break. Try that booshwah on a plumber. Or a carpenter. Or a stock broker. Or just about any other field.

But you do get paid, someone said. You get an advance (which is very often little more than pocket change, if that) and you do get royalties. How long do they think people will buy books so we can get royalties if they discover it is available for free? There is an ‘entitlement mentality’ in our society today where there are those who think everything should be free – birth control, cell phones, college, health care, medicine, whatever. I think in their greed and lack of self responsibility they haven’t thought it out that nothing is ever really free – someone somewhere has to pay for it. The writer pays with his time and imagination and plain hard work, but the court says negating the writer’s rights is a victory for ‘fair use.’

Fair to whom? Certainly not to the writer. Google is a $450-billion web giant copying millions of books, and then using them in part to feed its massive, money-generating search empire. They say this benefits the author because it will make his work easier to find. Perhaps – but what difference does it make if the author cannot retain control of his creation? Pierre Leval, US Circuit Judge, said “While authors are undoubtedly important intended beneficiaries of copyright, the ultimate, primary intended beneficiary is the public.”

I do not write to benefit the public. I write because it is my work, and from it I earn my income. To remove control of a writer’s work from the writer and make it free to the public might benefit the public in the short term, but what happens when the working professionals quit writing because they no longer earn even part of a living from it? Obviously the gap will be filled with those writers who do write just so that people can read their words and thoughts without regard for a career or proper recompense. Some of them might be good, but I’ll bet that most won’t. And that dissolution of standards will truly not be to the benefit of the public or even to literature itself.

Today on some of my writers loops there were attorneys doing apologia for this, saying that this was nothing new, that ‘fair use’ has been part of the law since the days of the Constitution. Perhaps it has, but that does not necessarily make it right. One thing that became evident is that there is no legal definition of ‘fair use.’ Is it a basic premise? An overarching idea? A phrase? A catchphrase? What? And even if it has been around from the beginning, I’m not sure writers are helped or protected by this sad legal situation being publicized.

This misbegotten ruling eviscerates the very concept of copyright, is a complete negation of the principle of copyright. Several someones have suggested that perhaps we should stop copyrighting our books with the government. At $35 per registration and with all the books being published now, that could add up to a fair amount of money. They have suggested that hitting them in the pocketbook might make the government re-think the proposition. I disagree. Monetary concerns might work with a private entity, but our government seems to thrive on overspending and then simply printing great amounts of money to make up for it. The few hundred thousand such a boycott would generate wouldn’t even be noticed. Besides, in cases of theft and/or piracy by others than the government-sanctioned ‘fair use’ crowd, you have a much smaller chance of justice and fair recompense if your work is not copyrighted through the government. The writer is going to be screwed either way.

We created our books and our characters. They are our property, and we should be in control of how and when and under what circumstances people have access to them. Writing is work, and the hire should be worthy of the work and the workman.