Authors Guild's Scott Turow: The Supreme Court, Google, Ebooks, Libraries & Amazon Are All Destroying Authors

from the old-man-yells-at-cloud dept

We've written more than a few times about Scott Turow, a brilliant author, but an absolute disaster as the Luddite-driven head of the Authors' Guild. During his tenure, he's done a disservice to authors around the globe by basically attacking everything new and modern -- despite any opportunities it might provide -- and talked up the importance of going back to physical books and bookstores. He's an often uninformed champion of a past that never really existed and which has no place in modern society. He once claimed that Shakespeare wouldn't have been successful under today's copyright law because of piracy, ignoring the fact that copyright law didn't even exist in the age of Shakespeare. His anti-ebook rants are just kind of wacky.

However, in his latest NY Times op-ed, he's basically thrown all of his cluelessness together in a rambling mishmash of "and another thing", combined with his desire to get those nutty technology kids off his lawn. For the few thousand members of the Authors Guild, it's time you found someone who was actually a visionary to lead, rather than a technology-hating reactionary pining for a mythical time in the past.

First up, a confused reaction to the Supreme Court's protection of first sale rights in Kirtsaeng.

LAST month, the Supreme Court decided to allow the importation and resale of foreign editions of American works, which are often cheaper than domestic editions. Until now, courts have forbidden such activity as a violation of copyright. Not only does this ruling open the gates to a surge in cheap imports, but since they will be sold in a secondary market, authors won’t get royalties.

First of all, no, this was not a "change" in US law. Courts had not forbidden this particular situation in the past, because the specifics of this hadn't really been tested in the past other than a few recent cases with somewhat different fact patterns. The point of the Supreme Court's ruling was to reinforce what most people already believed the law to be: if you buy a book, you have the right to resell it.

As for the "surge" in cheap imports, let's wait and see. It might impact markets like textbooks, which are artificially inflated, but for regular books? It seems like a huge stretch to think that it would be cost effective to ship in foreign books just for resale. And, of course, secondary markets have existed for ages, and studies have shown that they actually help authors because it makes it less risky to buy a new book, since people know they can resell it. Turow admits that secondary markets have always existed, but then jumps to what this is all "really" about in his mind:

This may sound like a minor problem; authors already contend with an enormous domestic market for secondhand books. But it is the latest example of how the global electronic marketplace is rapidly depleting authors’ income streams. It seems almost every player — publishers, search engines, libraries, pirates and even some scholars — is vying for position at authors’ expense.

Yes, that's right. The Kirtsaeng decision isn't just about first sale, it's really about the evil "global electronic marketplace" sucking authors dry. Of course, Turow fails to mention that Kirtsaeng had next to nothing to do with the internet. Yes, Kirtsaeng ended up selling his books via eBay, but tons of books sell on eBay. That had no impact on the ruling at all. The issue in the ruling was about books legally purchased abroad, and Kirtsaeng did that without the internet -- he just had friends and family back in Thailand buying books for him. To blame that on "the global electronic marketplace" is just completely random and wrong. It seems like the kind of thing someone says when they just want to blame technology for everything. Turow has his anti-technology hammer, but he's got to stop seeing nails in absolutely everything.

Authors practice one of the few professions directly protected in the Constitution, which instructs Congress “to promote the progress of Science and the useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The idea is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can’t be threatened, is essential to democracy.

Turow is a lawyer. As such, I would expect him not to misrepresent what the Constitution says, but he's done so here. Authors are not "directly protected in the Constitution." The Constitution does not "instruct" Congress to create copyright to promote the progress. Article 1, Section 8 of the Constitution grants Congress specific powers concerning what it can do. It does not "instruct" Congress that it must do these things. The same section of the Constitution also gives Congress the ability to "grant letters of marque" to privateers ("pirates" on the high seas) to attack enemies. No one would ever argue that the Constitution "instructs" Congress to authorize pirates on the high seas to "attack and capture enemy vessels." In fact, Congress has not officially used this power since 1815. Similarly, there is no requirement that Congress "protect" authors in this manner, no matter how much Turow may pretend this is the case.

Frankly, it's bizarre that Turow would so misrepresent the Constitution, when he must know what he's saying is untrue. It really calls into question why the NY Times allows such blatantly false statements to go out under its name.

That culture is now at risk. The value of copyrights is being quickly depreciated, a crisis that hits hardest not best-selling authors like me, who have benefited from most of the recent changes in bookselling, but new and so-called midlist writers.

Take e-books. They are much less expensive for publishers to produce: there are no printing, warehousing or transportation costs, and unlike physical books, there is no risk that the retailer will return the book for full credit.

Note the implicit assumption: only publishers produce books. Turow, apparently, ignores the fact that these modern technological wonders (which he hates so much) have enabled an entire new world of massively successful self-published authors, who take advantage of this situation to realize that they don't need publishers, and the lower costs and ease of distribution makes things much easier. As Clay Shirky has said in the past, publishing is a button, not an industry. And, no, that doesn't mean that authors should all do it by themselves, but the challenges are in marketing, not in "publishing" or distribution any more (with respect to ebooks).

Also the idea of a literary culture at risk is laughable. More books are being published today than ever before. More people are reading books today than ever before. More people are writing books than ever before. Books that would never have been published in the past are regularly published today. There is an astounding wealth of cultural diversity in the literary world. Sure, some of it means a lot more competition for the small group of authors (only about 8,000 or so) that Turow represents... oh wait, I think we've perhaps touched on the reason that Turow is all upset by this. But, of course, more competition for that small group of authors does not mean the culture of books and literature is at risk at all. Quite the opposite.

But instead of using the savings to be more generous to authors, the six major publishing houses — five of which were sued last year by the Justice Department’s Antitrust Division for fixing e-book prices — all rigidly insist on clauses limiting e-book royalties to 25 percent of net receipts. That is roughly half of a traditional hardcover royalty.

Best-selling authors have the market power to negotiate a higher implicit e-book royalty in our advances, even if our publishers won’t admit it. But writers whose works sell less robustly find their earnings declining because of the new rate, a process that will accelerate as the market pivots more toward digital.

Again, this totally ignores the new reality. Authors who don't like this admittedly crappy deal from the big publishers can go to alternatives. They can self-publish. Or they can sign up with one of a new crop of digitally savvy publishers who are much more like partners than gatekeepers. No surprise that Turow doesn't even seem to know these things exist. Hell, just last week we were talking about a successful self-published author who leveraged his massive success into an extremely favorable deal with Simon and Schuster to handle physical book distribution. And a week later Scott Turow argues that only historical top sellers like himself can negotiate better rates with the Big 6 Publishers in NY? Wake up, Scott, there's a whole new world out there that you seem to be ignoring.

Barry Eisler famously turned down a half million dollar contract with a publisher, because he realized that the economics of going direct were much better. Plenty of authors are recognizing that they have leverage today where they used to have none. It seems odd that Turow doesn't even acknowledge this reality at all, instead assuming that authors are still locked into the system where the only way they can become published is by taking a bad deal with a publisher.

And there are many e-books on which authors and publishers, big and small, earn nothing at all. Numerous pirate sites, supported by advertising or subscription fees, have grown up offshore, offering new and old e-books free.

If you're an author earning nothing at all, then you've got bigger problems than technology. It probably means you're mired in obscurity and no one knows who the hell you are. On top of that, it means you've done nothing at all to connect with your fans. Because we've seen authors who actively encourage the piracy of their books, but who also work to connect with their fans, and have seen their sales go way up, because those fans want to support the authors. Also, as most people know (why doesn't Turow seem aware of this?) ebook "piracy" is a fairly small part of the market, in part because the initial market was dominated by the Amazon Kindle, and publishers smartly jumped on board. Yes, there is ebook piracy, but it's not like the music and movie business where the official sources basically ceded the entire market to piracy for years.

The pirates would be a limited menace were it not for search engines that point users to these rogue sites with no fear of legal consequence, thanks to a provision inserted into the 1998 copyright laws. A search for “Scott Turow free e-books” brought up 10 pirate sites out of the first 10 results on Yahoo, 8 of 8 on Bing and 6 of 10 on Google, with paid ads decorating the margins of all three pages.

Okay, this is just dumb. First of all, no one is searching for "Scott Turow free e-books" so this shouldn't be much of a concern. I did a Google Trends search on "Scott Turow free e-books" vs. "Scott Turow books" and it shows no one searches for "Scott Turow free e-books", so he doesn't have much to worry about. Frankly, he should probably be a hell of a lot more concerned that not too many people seem to be searching for "Scott Turow books" either. But the larger point here is that, even if people were searching for "Scott Turow free e-books," how would that matter that much? By the very fact that they're doing that particular search, they've more or less self-identified as people not interested in paying money for Scott Turow books, so they're not the market anyway.

View full report in Google Trends

If I stood on a corner telling people who asked where they could buy stolen goods and collected a small fee for it, I’d be on my way to jail. And yet even while search engines sail under mottos like “Don’t be evil,” they do the same thing.

This is silly on multiple levels. First of all, by his own numbers, Google (who uses "Don't be evil") had the least number of "bad" sites in the results according to Turow. I did the same search and actually found only a couple sites that possibly were infringing. Instead, I did see links to the Authors Guild, to Amazon, to Turow's Wikipedia page... and to an old Techdirt article about Turow's cluelessness. That said, you could argue that if Google is "being evil" here it's actually by not giving its users what they're looking for -- which is clearly "free e-books." If people were actually doing this search (and we've already shown they're not) then perhaps it really just meant that Turow should be offering his own damn free ebooks, since that's what people are looking for. Why not offer an early work as a free download to get people interested in his books? Hell if he's really worried about it, offer up the first five chapters of a book. I've read a few of his books, and they can really grab you. Let people read the first few chapters for free and I'd bet lots of people would pay a reasonable price for the full book.

Instead of understanding any of this, Turow falsely attacks search engines on multiple levels. First, he suggests they're at fault because people are looking for free ebooks (even if they're not actually doing so for his own books). He assumes that because he did that search, others must. Second, when those search engines actually try to deliver what these theoretical people want (despite the fact that Turow himself has failed to do so) he complains about it. Finally, he falsely suggests that the search engines are making money doing so. They're not. Search engines make money if people click on ads. If someone sees a free ebook and clicks on an organic link, the search engine isn't making any money. I recognize that Turow hates technology, but that's no excuse for being blatantly ignorant about it when spewing misrepresentations in the NY Times.

From there, he attacks Google's book scanning project.

Google says this is a “fair use” of the works, an exception to copyright, because it shows only snippets of the books in response to each search. Of course, over the course of thousands of searches, Google is using the whole book and selling ads each time, while sharing none of the revenue with the author or publisher.

The second sentence has nothing to do with the first sentence. It is fair use because they're only showing snippets at a time, and most of those searches lead people to places where they can buy the books. I just did a search on Google Books for "Scott Turow" and the top links is to an Amazon page listing out all of Turow's books for sale. You'd think he'd appreciate such things. But, then, he'd have to not be a technologically illiterate Luddite.

All of this also ignores that Google's book scanning is really just about creating a rather useful card catalog for books, making them easier to find. Over and over again, people who have actually looked at the issue (i.e., not Scott Turow) have found that Google books increases sales of books. Considering he was just complaining about authors not getting any money, you'd think this would be a good thing.

He drones on about Google scanning books for a while, and then... attacks libraries for wanting to lend out ebooks, insisting that if they can do that, no one will ever buy a book again.

Now many public libraries want to lend e-books, not simply to patrons who come in to download, but to anybody with a reading device, a library card and an Internet connection. In this new reality, the only incentive to buy, rather than borrow, an e-book is the fact that the lent copy vanishes after a couple of weeks. As a result, many publishers currently refuse to sell e-books to public libraries.

One might also say "in this new reality," libraries are helping people access the wealth of information contained in books, just as they've always done. Who knew Scott Turow was so anti-library? It's kind of silly that maximalists and luddites keep jumping back to this trope. The idea that if you can get something for free, no one will ever pay for it. That's never been true and will never be true. All of the works that people pay for and download to their Kindles are already available for free on unauthorized sites. But tons of people pay. All of the music that people pay for and download to their iPods is already available for free on unauthorized sites. But tons of people pay. People will pay all the time for things they can get for free. Just check out the bottled water industry.

Turow then jumps back to attacking his other technological nemesis, Amazon, based on random speculation about a patent the company received:

An even more nightmarish version of the same problem emerged last month with the news that Amazon had a patent to resell e-books. Such a scheme will likely be ruled illegal. But if it is not, sales of new e-books will nose-dive, because an e-book, unlike a paper book, suffers no wear with each reading. Why would anyone ever buy a new book again?

Well, there's that trope again. Also, this ignores the ReDigi ruling, which has already said this is illegal, though that will be appealed. But, again, lots of people will still buy new ebooks, because they like to support authors. Also, it's likely that smart authors will embrace new and interesting business models in which this kind of thing isn't a problem. They can use Kickstarter to "pre-sell" the books and get support from fans. They can offer special benefits for fans who buy new books (such as membership in a fan club with other fans of that author). They can provide early previews or discounts on future or past works to those who buy first run copies of their new works. The list goes on and on -- and those are just the ones I came up with in the 30 seconds I spent thinking about it. Give me a full day to work on it, and the list would be in the dozens. But Turow, bizarrely, assumes that no one could possibly come up with any other reason.

And, from there, we go off onto a totally wacky tangent about Russia.

Last October, I visited Moscow and met with a group of authors who described the sad fate of writing as a livelihood in Russia. There is only a handful of publishers left, while e-publishing is savaged by instantaneous piracy that goes almost completely unpoliced. As a result, in the country of Tolstoy and Chekhov, few Russians, let alone Westerners, can name a contemporary Russian author whose work regularly affects the national conversation.

Note that he names Tolstoy and Chekhov -- two authors who both died more than a century ago. Could Turow easily name for us a Russian author from the 1940s who regularly affected the national conversation? How about the 1960s? 1980s? 1990s? No? Perhaps the problem isn't ebooks and piracy.

Meanwhile, as it so happens, not too long ago, we wrote a report on the content markets in various countries, including Russia. Turow might find it helpful, since he seems to be at a loss for actual data and facts in so many of his public statements on these issues. He can get a copy of The Sky is Rising 2 if he'd like. We offer it for free (the horror!). In it, he'd discover that the Russian book business is on the upswing. In the past fifteen years, the number of books published has increased by an impressive 266%, from just 33,623 in 1995 to 122,915 in 2011. That rate of growth exceeded all of the other countries we studied in Europe. It is true that the Russian market saw a decline in book revenue between 2008 and 2011 as the worldwide recession had an impact, but it has also recently seen the absolutely massive growth in the sale of ebook readers. As we've seen elsewhere, growth in ebook readers almost always acts as a leading indicator for later growth in ebook sales, because most readers connect easily to various authorized ebook stores, and the convenience factor leads to sales. One of the issues in Russia has been that many of the established players have been exceptionally slow in offering up authorized copies in the Russian market. If there are no authorized copies to buy, it shouldn't be a huge surprise to find out that people seek out alternatives.

It should be noted that when famed author Paulo Coelho decided to pirate his own book in Russia, it was because his publisher refused to offer a Russian translation. And what Coelho discovered was that sales of his book jumped from around 1,000 books to over 100,000 books because of his own decision to seed an unauthorized Russian translation. At the very least, this suggests that "piracy" isn't the problem and that, if handled well, authors can absolutely get people to buy, even when free works are available.

Scott Turow is clearly a smart individual. He's a fantastic author, whose books I've enjoyed for years. But it boggles my mind that he's so anti-technology based on ridiculous and ignorant claims, and that despite being called out on his ignorant statements for years, he chooses not to learn, but instead doubles down on those same ignorant statements by saying even more. It's doubly confusing that the NY Times sullies its own good name by allowing such obviously false statements to be published under its masthead.

Finally, the 8,000 or so authors (a mere fraction of the number of actual authors out there) who make up the Authors Guild are not served well by having someone as technologically reactionary as Turow leading them. It seems they'd be much better served by having a visionary leader who looks at ways to embrace new opportunities and who has realized that they can help to better promote, to connect with fans and to monetize their works. Having someone just yell about general progress, and try to ignorantly shoo the "kids" off his lawn over and over again, does them no favors.