Originally published February 22, 2002, in Comics Buyer’s Guide #1475
I’ve found myself sucked into discussions over in my Usenet newsgroup (the only one in which I still participate) involving the notion that writers should just stop being so darned upset about their work showing up on the Internet.
The arrogance one encounters from people who hold such a position can truly be astounding. The sentiments, boiled down, seem to be, “Information and literature should be available to all, and writers shouldn’t be carping about losing ‘a few pennies’ in royalties.” This displays an amazing amount of contempt for writers… or maybe not so amazing.
There’s this notion, you see, that writers should be willing to throw themselves on their metaphorical sword in order to accommodate the desires of their fans to snag freebies. In the best J. Wellington Wimpy spirit of “Let’s you and him fight,” writers are expected to set aside their own needs and desires in favor of the audience… and the audience, on the other hand, is eminently entitled to be as selfish as it wants. Readers’ access to books should be untrammeled and inviolate, while writers’ access to proceeds from the books should be deferred in favor of some greater good. One guy even went so far as to quote (or attempt to quote; he mangled it pretty thoroughly) Mr. Spock in Star Trek II by claiming that the needs of the many outweigh the needs of the few, or the one. My response was that quoting fictional characters in a debate carries very little clout with me, and furthermore, Captain Kirk said in Star Trek III that the needs of the one outweighed the needs of the many, and Kirk outranks Spock, so there, nyaaah.
What’s truly staggering is that supposedly intelligent people can’t suss the difference between books available for electronic distribution and books from libraries. “Folks can take books out of libraries for free, so why isn’t this the same thing?” Yet the differences are obvious. First, libraries actually pay for the books they acquire. The library-buying market is a considerable one, and don’t underestimate the clout that librarians have. Second, the book is loaned out for a specified period and then (ideally) returned, on a one-to-one basis. This is contrasted to illegal electronic transmission which can be done on a massive scale, and once the books are in someone’s hard drive, they stay there forever. It’s not a loan-out; it’s a rip-off. It’s not enough that hundreds of years worth of literature is available and unprotected by copyright; the needs of the many will not be satisfied until the entire oeuvre of Stephen King is available to people who wouldn’t dream of walking into a bookstore, shoving a book in their pocket and walking out with it. Because, y’know, that would be stealing. In the meantime, people are busy posting the Star Trek: New Frontier novels onto Usenet because they apparently think I don’t deserve to earn royalties on them.
Somehow the reasoning goes that books should be able to be free to everyone in order to serve the requirements of the commonweal. It should be pointed out that if the wiring in the commonweal’s house shorts out, or the commonweal’s toilets back up, the electrician and the plumber are not going to attend to the situation out of the goodness of their hearts. But writers are not likened to hard-working guys like electricians and plumbers. They are accorded rarefied status… except when they’re being treated like garbage.
Let me make it clear, though: Writer abuse is not limited to computer nets. Indeed, when you consider it on a world wide scale, denizens of boards who swipe books whole are a fairly small percentage of those who make writers’ lives difficult. No, if you want sheer arrogance, raised to levels that you and I can only dream about, you need to think about large corporations. About Big Business.
It’s hardly confined to attitudes regarding writers, of course. I mean, yeah, as I mentioned before, people are swiping New Frontier off the net. But hey, at least I don’t have a pension plan being overseen by Enron. Still, one of the purposes of major corporations is to create barriers. Barriers between the upper echelon and the higher courts, between the big boys and the “little people,” between the CEOs and the IRS. Insulated in their ivory towers, they don’t give a dámņ about anyone except themselves, save for those times when it’s going to net them some positive publicity value by creating a public face of a corporation that cares.
When faced with megaliths such as these, it is tempting to simply lie there when they have their foot in your face. Why? Because they’re major corporations. They have more money than God and more lawyers than Lucifer. They will issue you contracts with onerous phrasing upon it and say, “Can’t do anything about it. It’s boilerplate.” Presumably, you’re supposed to sigh and say, “Oh. Boilerplate. Bummer. Well, that’s the final word on that.” Faced with the sheer immensity of the opponent, you become paralyzed by a “Can’t fight City Hall” ennui.
Except that’s not true. You can indeed fight City Hall, and you can win. And two recent events have underscored that.
First is the news that Critical Path and RemarQ settled the case with Harlan Ellison. As was reported in CBG last week, RemarQ is developing software “to delete unauthorized postings of (Ellison’s) works of which he becomes aware.” Consider the number of people who told Ellison he was misguided or foolish in his endeavors, but consider even more the many who sent money to support KICK Internet Piracy, believing that copyright law and protection of published material should actually mean something. AOL continues to refuse to settle, probably still viewing it as a David and Goliath match-up. Apparently they’re ignoring two things: Number one, what happened to Goliath, and number two, with Critical Path settling, the shepherd has considerably more stones in his sling. Despite the depletion of time, energy and his personal finances, Ellison has pressed on because not only is he unimpressed by the smugness of his opponent, but instead it only gets him riled up. Hopefully AOL will take the hint.
Second is the passing of Peggy Lee. An accomplished singer and songwriter, true, but her greatest achievement may be that she violated the cardinal rule of Hollywood: Don’t screw with the Mouse. Peggy Lee went toe-to-toe with Disney and she won.
Disney is legendary for the contractual chokehold it puts on its talent. Now the only Disney contract I ever saw personally was when I was doing work for the comic book line. They sent me a contract that had language in it to which I objected. For instance, one of the items stated that not only was the work that I produced automatically the property of Disney, but even any “idea” was theirs automatically. Now I’m just a little familiar with the monetary value of ideas. For instance, years ago I voiced the observation, in the presence of then X-Men editor Bob Harras and several other writers, that I never understood why Magneto wasted time with Wolverine. Why, I wondered, didn’t he just rip Wolvie’s skeleton out of his body and be done with it. “Great idea!” quoth Bob Harras, and Marvel proceeded to milk the notion for years. Amount of money Marvel made off the idea? Millions. Amount of money other writers made off it? Thousands and thousands. Amount of money I made off it, considering I wrote none of the books involved? Goose egg. So I know from personal experience that ideas can make piles of cash for everyone but the person who conceives them.
Furthermore, the Disney contract claimed sole rights through “the entire Universe.” Now I’m told that’s in there because of satellite broadcasts, but still, it seemed a bit obsessive.
So in the one clause I just crossed out the word “idea,” and in the other, I struck out “Universe” and replaced it with “Solar System.” That seemed reasonable to me… plus, on the off chance that someone from Proxima Centauri showed up looking to make a deal for subrights on an issue of The Little Mermaid, I could have some leverage. I sent the contract back with the changes. Curiously, I never heard from them again, although I did get paid for the work. Go figure.
But whereas for me it was almost fun and games, Peggy Lee cut a deal with Disney of a far more serious nature. At the time that she contracted with the Mouse for her work in Lady and the Tramp, including writing and performing the inimitable, “He’s a Tramp,” Disney’s rights to the material were confined to audio recording, movies and broadcasting. So when Lady and the Tramp hit the home video market years later, there was Peggy Lee to point out that her contract didn’t include those rights. Disney tried to blow her off. Why not? They’re a big corporation. They’re Disney. They don’t have to play ball. They’re not only City Hall, they’re Main Street USA. Fighting them was impossible. Except Peggy Lee did it, and the courts agreed that Disney owed her a considerable chunk of change.
Creator’s rights have taken some hits in recent days, with the lack of support the courts gave to Marv Wolfman’s fight for Blade and Dan DeCarlo’s over Josie and the Pussycats. But it’s not always that way. One need not, should not, must not knuckle under to corporate insensitivity and bullying. It’s not an easy decision to make, there are risks involved, sacrifices such actions often entail, and you can get well and truly bloodied along the way. But at the end of the day, it comes down to this: When some corporate goon tells you that if you don’t like it, take a hike, go ahead and do it… but make sure that the shoes you’re wearing are long distance shoes, and that they’re very squeaky so you can make a ton of noise and they’ll dread the sound of your approaching footsteps.
(Peter David can be written to at Second Age, Inc., PO Box 239, Bayport, NY 11705.)
• 
Copyright applies solely to the presentation of an idea; there is no such thing as ownership of an idea unless one can get a patent on it, viz., the sewing machine.
Disney does not have any rights to the “idea” of Peter Pan, though it still probably has a valid copyright upon display of its movie.
Patents and copyrights are creatures of the Constitution, and their existence, duration, &c., are solely a matter of federal law. International conventions (for all practical purpose) limit Congressional discretion today. But, were Congress to pass a conflicting bill and the President were to sign it, my guess is that the statute here would trump the treaty since a treaty expresses solely the will of the President and the Senate. The House cannot be stripped so of a constitutional function.
In a sense, then, the pirates are correct when they say that, once a book, movie, computer program, &c., are available to the public domain, the creator of said book, movie, computer program, &c., no longer has control over it. The Founders created copyright and patent expressly for advancing science and the useful arts, and that is why the protection is only temporary. The Founders believed in innovation, not monopoly, and recognized that people like Peter have to invest time, effort, and (yes) some expense to provide us with their creations, and that no one will do that if they’re going to get screwed every time by some cluckhead on the internet who provides us nothing, himself, but is more than willing to use scanners and technology to copy like some poll parrot the genuine efforts of somebody else, then spread it around.
So, the answer, Peter, to those who arrogantly seek to claim your work as their own, in the interest of freedom of knowledge, is to remind people that, without the protection of copyright or patent, people will keep their discoveries, writings, and inventions to themselves, and LESS, not more information will be available to the general public. (This actually once happened in the case of no less than Sir Isaac Newton, who kept the invention of calculus to himself for years until it was discovered independently by Leibnitz.) Viking today puts precisely this kind of notice on its copyright pages, and perhaps you ought to consider doing the same. (The element of license, as opposed to outright sale, is a separate issue and, perhaps, worth exploring.)
And if, as you claim, people continue to be arrogant re spreading your stuff around the internet sans your permission, you can remind them that violation of copyright is a criminal matter which can land one in trouble with the FBI.
I doubt Disney’s big enough to whup them.
Tangentially related, this column led me to recall Harlan Ellison’s unholy glee after the Directors’ Guild sent out form letters to members of various creative unions in Hollywood, asking for support of a law banning colourisation of B&W films, since it interfered with the dirctor’s “creative vision” of the film.
I don’t recall Harlan’s exact comment, but it was along the lines “Wait a minute – the directors are asking writers to help defend the directors’ ‘creative vision’?”
hmmm. I seem to have broken the internets…
This reminds me of an incident where a friend of a friend was crowing about an article written about his website, an archive of old text files and ASCII art from the dawn of the internet, claiming that this stuff should be catalogued, and was a big champion of “all information should be free”, even going so far as to defend people who post entire books online… Yet threw a total fit when he found out someone had reposted something of his “without permission”.
Gotta love the smell of hypocrisy