Copyright, Copywrong?

February 2004 saw more controversy about copyright. Old-time SF author Harlan Ellison won a skirmish in his legal battle against on-line piracy, and the much younger pundit Cory Doctorow expressed alarm at Ellison's actions.

Pirated texts, like pirated music, are a fact of life. I stopped reading the Usenet newsgroup rec.arts.sf.written for a while, when some anonymous idiot clogged it by posting the whole of Dune and other novels, just to show he could do it. Mainly he showed he was an obnoxious twit. More recently, villains cowering behind anonymous remailers announced free downloads of all the Harry Potter and Discworld audiobooks from pirate sites – perhaps not considering what legal heavies J.K. Rowling and Terry Pratchett could hire if they ever pooled their pocket money.

When Harlan Ellison was pirated on alt.binaries.ebook, he swore undying vengeance. Must choose my words carefully here, because I enraged the great man last time I wrote about this case. After settling with the actual culprit Stephen Robertson who'd been illicitly posting stories on-line, and his internet provider RemarQ, Ellison went after AOL for carrying the offending newsgroup and failing to delete pirated material fast enough. Some felt that this was like suing the post office for not censoring mail.

Though generally sympathetic to Ellison, I reported the March 2002 bulletin (from a respected international law digest) that his AOL case had failed. One important precedent was "Religious Technology Center v. Netcom" ... RTC being the Scientologists, who lost a vaguely similar lawsuit. Since our hero has no love for the outfit whose fate he seemed to have shared, my cheeky headline was perhaps unwise: "Harlan Ellison Joins Scientologists!"

I hadn't then realized that an appeal against this decision was possible. Before the update in my next newsletter, an outraged Ellison demanded that millions of readers of his on-line bulletin board should shut down my web presence – or as he wrote with characteristic understatement, "find your e.way onto that Ansible site, whatever and wherever it is, and put a chokehold on their crowing, lest they have to eat those rotten eggs poached in their own perfidy." Oh dear! I was duly inundated by a flood of three complaining e-mails.

Legal wheels turned, years slipped by, and this February the powerful US Ninth Circuit Court of Appeals (one level below the Supreme Court) partly upheld and partly reversed the 2002 decision, with Ellison and AOL each to pay their own costs, and the road left open for further exciting litigation. All a bit bewildering to mere mortals.

Now here's rising SF author Cory Doctorow, who believes in giving away digital samples or even entire e-texts to promote book sales. He's not alone. Bruce Sterling made his The Hacker Crackdown an internet freebie, and US publisher Baen Books offers a whole library of free SF on-line. Doctorow himself placed his February speech to the O'Reilly Emerging Technologies Conference in the public domain. I'll just quote relevant paragraphs; you can read the rest at ...

"... I was shocked silly by legal action by one of my colleagues against AOL/Time-Warner for carrying the alt.binaries.ebooks newsgroup. This writer alleged that AOL should have a duty to remove this newsgroup, since it carried so many infringing files, and that its failure to do so made it a contributory infringer, and so liable for the incredibly stiff penalties afforded by our newly minted copyright laws like the No Electronic Theft Act and the loathsome Digital Millennium Copyright Act or DMCA.

"Now there was a scary thought: there were people out there who thought the world would be a better place if ISPs were given the duty of actively policing and censoring the websites and newsfeeds their customers had access to, including a requirement that ISPs needed to determine, all on their own, what was an unlawful copyright infringement – something more usually left up to judges in the light of extensive amicus briefings from esteemed copyright scholars.

"This was a stupendously dumb idea, and it offended me down to my boots. Writers are supposed to be advocates of free expression, not censorship. It seemed that some of my colleagues loved the First Amendment, but they were reluctant to share it with the rest of the world."

Point taken about not suing the post office over dubious mail. But is the "free expression" of a creator like Cory Doctorow, who chooses to make his own work available for nothing, really comparable to that of some talentless git with a scanner who merely denies authors the right to choose otherwise? His heart is certainly in the right place, but the rhetoric of "information wants to be free" is so frequently hijacked by mere intellectual property thieves.

My own cowardly feeling is that I can't afford to give all my writing away. [Voice from SFX Accounts Dept: "Rats!"] The Langford compromise includes not charging for that newsletter Ansible, and putting short nonfiction on the web a few tactful months after its magazine appearance. Except when dealing with journals like N*w Sc**ntist, or reference books, that insist on grabbing full copyright and leave me sorely tempted to pirate my own work ...

David Langford's brain now hurts.