[Lady Justice via Wikipedia, under CC Attribution-Share Alike Licence 3.0 Unported, see here for author etc.]
I've been a bit quiet recently, at least in these pages, because I've been working on actual books rather than thinking about publishing, but I have to put my head above the battlements to query some of Richard Mollet's polemic from Jan 3.
Reassuring though it is to those of our industry who feel threatened and impinged upon by the digital world, his analysis is flawed, and the ways in which it is flawed are important. I don't agree with Rickard Falkvinge (or Loz Kaye) on any number of issues, but it's idle to pretend Falkvinge is not godfather to a political movement that speaks for a lot of people, and disingenuous to ignore the Pirate Party's positions on a number of issues not directly related to copyright where they are frankly more sensible and more moral than the major parties (Different local parties have different agendas, but here's the UK's.)
"is it really the case that publishers' businesses are based upon their ability to stymie the exchange of interesting ideas?"
Yes, it is. Obviously that's not the way most think about it. The industry works to gather, curate, edit, publicise and dissemenate narratives and ideas. That doesn't offset Falkvinge's point - that the industry as it has existed until now rests on a model of ideas being distributed in the form of physical objects which are both rivalrous and excludable. (Rivalrous means that ownership is zero-sum game: if you've got this object, that means I cannot have the same object; excludable means that I can readily fence it in: I can keep you from having it until you pay me for it.) The entire discussion of DRM and the various delivery mechanisms we use for ebooks is in effect about carrying this model forward into the digital media. Digital technology, meanwhile, is all about the rapid copying, transmission and dissemanation of information - in other words it is in direct conflict with this model. That much is old hat. It's not up for discussion, and it's absurd to pretend there's no tension, or that the basic model of the industry in the 20th Century isn't problematized (ghastly word) by the digital technology of the 21st.
Falkvinge, meanwhile, is in the curious position of making the case that because something cannot readily be prevented, no one should try to prevent it. That's an argument that has legs in some situations - the War On Drugs, for example, hasn't been a smashing success and indeed has criminalised, stigmatised and incarcerated huge numbers of people governments should probably have been trying to enfranchise instead - but it's far from obvious that it applies universally.
His position is not that straightforwardly broken, of course: he also has things to say about the morality or otherwise of copyright - and the behaviour of content industry entities. That's a very, very interesting area that bears close scrutiny. Different nations and cultures premise their perception of intellectual property rights on different bases. The judges in the original copyright case regarding the copying of a Psalter concluded that the copy belonged in some sense to the book from which it was copied. Offhand, I can see that decision coming about in one of two ways: first, that the books were the same object, a single thing now present in two places; second, that the original was the essential source of the copy and that genealogy implied ownership. (The third option is that the owner of the original Psalter was simply more influential than the holder of the copy, but let that go for now.)
Note that no reference is made in the judgment either to the maker of the original or the copyist. This is a discussion of objects and their properties - though it may be complicated by the fact that the objects in question are religious texts. However, the "sweat of the brow" argument which is a large part of the UK's approach to copyright is an non-issue. Instead these are questions of inherent identity - in a modern perception, a far more Germaic approach to the whole thing. The US version of the justification of copyright, meanwhile, is also absent: no obvious consideration is given to the issue of what the effect on society at large will be. Utilitarianism plays no part.
Those of us who live by copyright carry the burden of explaining why it is moral as well as why it is important. Those of us who despise it must likewise explain their objection. Going by the Declaration of Principles, the party's argument is mostly Utilitarian, citing the unfettered exchange of ideas as a public good, the implication being that a more educated and discursive society is a healthier one. That's hardly obnoxious. Also not really unreasonable is the desire to reduce the term of copyright. With the best will in the world, it's hard to see why an intellectual property should outlive its author by seven decades. Don't get me wrong: it's great to think of my great grandchildren getting royalty cheques. But is it well grounded in a rational notion of fairness? No, not especially. That said, it's arguable whether yielding to an unformed mass desire to expropriate what has been considered property is beneficial, so the Utilitarian argument has issues of its own even before you ask how to reward creative persons to stimulate production and allow creation to be a full-time occupation. Beyond that there are other arguments whose power is more or less persuasive depending on how you view their underpinnings of effort and identity, but let that go for today.
So does the Pirate Party sanction great pirate factories churning out cheap copies of shiny new books for sale in the corner of smoky bars? "Hey, mate, got the new Grisham, that'll get you off!"? No - so that's not the issue. The sticking point is the party's allegiance to the enfranchisement of non-commercial sharing. The spectre that looms over the content industries, of which we are one, is of once-customers blithely copying and sharing things so that no one ever buys content ever again. I have yet to see a clear, compelling explanation of how to preserve the structures necessary to the production of high-grade content in that environment, but there are some significant considerations - of which the most important is that perceived moral and social obligation is a better tool for us than law. Why? Well, we can't really enforce the law, and if we could, what exactly would we achieve? We'd take our own fan-base to court, stick them with bills they might or might not be able to pay along with court costs, and either recover that money and become a debt-reclaimation industry or not recover it and go bust. Into the bargain, we'd alienate everyone. Oh, and by the way: if you go that road, I won't work for you or alongside you and nor will any number of other authors, so you may find you're strapped for content. (For more on social obligations versus commercial ones, read Dan Ariely's Predictably Irrational. I'll note here that there's a constant debate over exactly how damaging filesharing is - some specialist houses have had positive numbers on sales of a book whenever it gets pirated or shared - but also that the issue is non-trivially complicated. What happens if you have once established a relationship predicated on economic and legal prohibition, thereby doing away with a social obligation, and then you remove the legal bar and try to implant a social one? Nothing good. We're not operating in a vacuum, and it may be that some solutions that work now and seem to gesture to how things might work without the present legislation would actual fail to function if it wasn't there. Read Ariely. I can't say it enough.)
So, what to do, what to do?
Well, first: you sell The Book. Not books, individually, but The Book. For five years I've been waiting for a joint campaign by the publishing industry to hit back at X-Boxes and cable TV. We're in a fight for people's attention and their leisure time, and our (cordial) enemies are games and TV and the rest. So how do you sell The Book? Well...
1. Sell the life. You sell the log fire and the dog with your slippers, the long luxurious bubble bath and the glass of red wine, the quiet, the excitement, the frisson and the fear. You sell reading on your commute, escaping the gloom, settling down to a wider, better world.
2. Sell the science. Books make you smarter and more empathetic, and we can prove it.
3. Sell by association. Get Jessica Ennis, will.i.am, Benedict Cumberbatch and Freema Agyeman to do spots about how they love books. Get footballers, businesspeople, rock stars and technologists. I don't care who you actually get, just get people who are cool, admirable, exciting. It particularly helps if they do something that isn't directly bookish. Connect books with being successful, being sought-after, with making money, with being admirable.
4. Sell with sex. OF COURSE. Books are sexy. GOOD GOD, books are sexy. 50 Shades, step aside. Books have been stimulating, outraging, flirting, undressing, seducing and fornicating since Gutenberg agreed to do a few dirty poems to pay the rent. (I don't know, you look it up.) Get hot people to pout at the camera and say they love books, that they love people who love books. It's not a cerebral approach, I grant you, and it's undignified. It's a lot less undignified than suing a pre-teen for downloading The Gruffalo.
And while you're doing all or any of that, make a case for the industry. Make a connection. Make us look human to our customers. We are all nice people. No one wants to steal from nice people. No one wants to put nice people out of business. So the most important:
5. Sell "us". Let's put publishers, editors, writers, sales execs front and centre. "I work in XYZ, this is my favourite book because..." Let us come out from behind the curtain and be seen. Once we are seen, once have a face, people will work to avoid hurting us and what we do - for no better reason than that we seem nice. Companies, especially large ones that sue people, are a legitimate target for disdain in today's culture. People with passion are not. A person is someone we relate to, someone we might be like or might like to meet. And that is particularly true among our customers - because if you want books, it's because you read them and if you read them you become more empathetic! (See what I did there?)
What else? Make our product properly available in a timely fashion. I'm not talking about a policy of appeasement here, and filesharers are not an invading army. But, for example, it's a truism in the trade that publishing has seasons, but it's not entirely clear why. There were annual rhythms. Are there still? Or is it just that we do it that way, even though the technology of our industry and the social ebb and flow have both changed past the point where it's still true? And if there aren't seasons any more, why can't we synchronise with international releases? Why must we cluster book releases so that everyone trips over everyone else? Holding back a book to wait for the right moment may have made sense when there were no other sources and when the world moved on a natural rhythm, but does it now?
Moving on... You know what is arguably the most aggressive, self-protecting, litigious, tight-fisted industry on Earth? Hollywood. You know what they do now? When you buy a DVD, you get a download free alongside it. Yes, it's heavily protected, and yes, they sue everyone. (Note how they are basically hated, and how it's still not remotely difficult to get pirated movie and TV content. If you're in doubt about that, ask a teenager.) But they sell their product in multiple formats as a matter of course. They are so aggressive they effectively control how the US Congress legilsates on copyright, but they still give away digital format copies with physical ones. Do we do that? No. Why not? Because the accounting would be difficult? Because we're not set up for it? Because we "don't know whether there's a market for it".
Why don't we know? Because we haven't found out. So let's change that. Let's look for ways to get books to people, not shy away from them because they're inconvenient. That's just good strategy anyway - you could say that Amazon wouldn't control the market to the extent that it does if publishing had been doing that in 1997 etc etc.
We're not going to survive the next decades by fortifying and litigating as a primary strategy. Nor are we going to win out by finding reasons to feel contempt for our customers, however uncomfortable it is to discover that readers are now directly on our doorstep rather than nicely dealing with booksellers they way they used to. We're not going to profit by shutting the door and shooting at the peasants from the tower. We need to invite everyone in and show them a good time. Machiavelli wrote that it's better to be feared than loved because love may fade. It's also better to be loved or at least lovable than to attempt and fail to be feared - otherwise you're just a pantomime villain shouting ineffectually at a room full of delighted children. And speaking of children - seriously: do you want to get up in the morning and say "business is up because I scared the crap out of seven thousand extra ten year olds last week"?
The Pirate Party's political positions are in some areas idealistic, in others (civil liberties and privacy, for example) very important, and they are mostly more nebulous than I would wish for in a party in government. In places they are blatantly wishful. Fortunately, there is no obvious danger of the Pirate Party dominating the House of Commons. The opposing positions in our industry can be at least as unconsidered, and more, they push towards a War On Piracy which shows every sign of being as futile, draining and divisive as all the other such Wars presently being fought in our world.
I wish to register my vote: I am not in favour of a war on filesharing - or on my readers - though I will happily go to battle against someone with a pirate printfactory working for a profit. Nor do I believe it is wise to change the law to allow mass non-commercial copying until there is an existing culture of obligation. That mass copying is de facto already the norm is not relevant to that calculation. Our solution will not be found in legislation or litigation (unless it is in a loosening of competition law to allow companies which provide Internet access to own content companies - a logical endpoint of the Internet's commercial rapaciousness). We must build a relationship that works, and we won't do that with threats and punishment. We'll do it by showing what we are, what we need, and what we love. When we've done that, it frankly won't matter any more what the law says, which is how the best laws work: reassuringly unnoticed and uninvoked.