Jim Baen's Universe Volume 1 Number 5

by Eric Flint

  Over the years, I've edited a number of stories that have won or been nominated for Hugo Awards, but the editorial feat of which I am proudest is that in the decade of the 1990s I bought more first stories than any of the major magazines, indeed than all of them put together, and that 8 of "my" discoveries made the Campbell ballot (science fiction's Rookie of the Year award), and one of them—my daughter, in fact; good genes there—won it.

  I am committed to editing the best science fiction around, but I am equally committed to encouraging the next generation to produce it. When Burroughs and A. Merritt and Olaf Stapleton had shot their bolts, along came Robert A. Heinlein and Isaac Asimov and Theodore Sturgeon. A decade later we had Sheckley and William Tenn and Jack Vance. Then came Robert Silverberg and Harlan Ellison, A few more years and we had Roger Zelazny and Ursula K. Le Guin and Anne McCaffrey. Then along came George R. R. Martin and Connie Willis and Orson Scott Card. A new batch of superstars makes the scene every few years. Along with presenting the best of the current ones, we owe it to the readers, and indeed to the field itself, to find and present the next generation as well.

  Newcomers have a lot of stories to tell. They don't fall into the trap of telling the same story over and over again. That they leave to television, and that we'll leave to lesser magazines, which is one of the reasons I am so committed to finding the best of them.

  I'm glad to be aboard. . Eric is still the head honcho, and production schedules being what they are very little of my editing will show up here before the last couple of months of 2007. But I'm at work on those future issues right now, and I promise to do my best to please you.

  —Mike Resnick

  Lies, and More Lies

  Written by Eric Flint

  In my last essay, I ended by saying that the claims made today on behalf of DRM—that stands for "Digital Rights Management"—can be summarized as follows:

  The advent of digital media makes it so effortless to copy an intellectual creator's work that traditional notions of "fair use" have to be abandoned. In today's world, any sort of "fair use" will inexorably and inevitably lead to wholesale violation of copyright.

  Therefore, fair use must be banned entirely—or, at a bare minimum, have tremendous restrictions placed on it.

  And I concluded by paraphrasing Mary McCarthy's famous quip that every word in the above statement was a lie, including "the" and "and."

  Let's start with "makes it so effortless."

  What's being claimed here, by the proponents of DRM, is that because digital data can be processed by computers all of the traditional practical obstacles that made it difficult for somewhat to infringe copyright have vanished. "Online piracy" has therefore become rampant. If someone wants to produce a "pirated" version of an electronic text, they no longer have to have access to printing presses, nor do they need the financial wherewithal to operate them or pay someone else to do so. They can simply duplicate the text on their own home computer and thereby completely circumvent the need to pay the creator of the work under traditional copyright laws.

  For this reason, DRM supporters claim, all electronic text must be carefully encrypted. That forces the prospective user, whether he wants to or not, to pay the creators of the product the money that is legitimately owed to them. Without the code to open the encryption—to get which, he must pay for the legitimate product—the "pirate" is out of business.

  Furthermore, in order to prevent anyone from producing an illegal code-cracking mechanism, severe penalties must be levied against any such activity. And finally—oh, they're a thorough lot, these sweethearts—any product or activity that might be used to "pirate" an electronic text must be banned also.

  An aside here, before I continue. In the paragraphs above, I put the terms "pirate" and "piracy" and "pirated" in quotation marks. And I will continue to do so throughout these essays.

  That's because the terms are another lie. They are words which—I speak as a professional author of fiction, here, who makes his living working with words and manipulating them consciously for a desired emotional effect on the reader—are consciously and deliberately designed to obfuscate the real issues involved by substitute hysterical terminology for rational discourse.

  Piracy?

  That's preposterous. Piracy is a crime that involves such things as:

  Murder.

  Rape.

  Arson.

  Armed robbery.

  To claim that an author or publisher has been "subject to piracy" because someone infringed their copyright is grotesque. They have suffered absolutely no physical damage, pain or indignity whatsoever. Their property as such has not been destroyed in any way, shape or form.

  They've simply suffered what amounts to a theft. And even leaving aside the absence of any weapons being used, the term "robbery" cannot be applied because the theft involved is so petty.

  How petty? As an author, I can tell you exactly how petty it is, taken one instance at a time.

  Like most authors nowadays, I make most of my income from the royalties earned by my hardcover titles. I leave aside the money paid in the form of an advance, because an advance is simply an advance against royalties. It's always royalties that are the ultimate determinant of an author's income—as any author whose advances fail to earn out too often will quickly discover when the publisher refuses to buy any more of his books.

  How much do I make in the way of royalties? The way they're calculated in my contracts—and these are the standard contracts used throughout the commercial fiction industry—are as follows:

  For sales of any hardcover book up to a total of five thousand copies, I am entitled to 10% of the retail price of the book. The cover price, that is, not whatever lower price to which a given retailer might have discounted the book. (There are a few exceptions, such as what are called "remaindered copies," but that's a side issue that doesn't play any role here, so I'll ignore it.)

  For sales of any book between five thousand and ten thousand copies, I am entitled to 12.5% of the retail price of my book. And for any copies sold above ten thousand, I am entitled to 15%.

  Except for a tiny number of top-selling authors, that's where the cap lies: at fifteen percent. Whether a given title of mine sells 10,001 copies or 100,000 copies, I will make 15% of the retail price from each sale.

  Okay, now let's translate that into dollars and cents. The cover price of hardcover fiction titles varies a bit, but it's fair today to put $25.00 as more-or-less the standard price.

  Even at the top 15% tier, in other words, a theft of one of my books causes me loss and suffering in the amount of $3.75. About what it costs to buy a cheeseburger and fries at a hamburger chain like McDonald's, or a large cappuccino at Starbuck's.

  So. Can you imagine the ridicule I would be subjected to if I demanded that a louse who stole my large cappuccino was a "pirate." No different from a murderer, or a rapist, or an arsonist, or an armed robber?

  Mind you, even the theft of a cup of cappuccino is a theft, sure enough. It's against the law, and if the police catch the culprit he will be charged with a crime.

  A misdemeanor, to be precise. Because when it comes to theft—assuming no violence is involved—the distinction between a misdemeanor offense and a felony is normally determined by the amount of money involved in the theft. And, in any municipality I know of, $3.75 falls way below the bar needed to turn a theft into a felony like robbery. Much less the equivalent of murder, rape, and arson.

  Moreover, how many policemen in any city or town in the country are going to devote much effort to solving such a crime? And how many prosecutors are going to go all out to make sure the dastardly cappuccino thief is subjected to the full penalties provided for by the law?

  Hopefully, none. I say "hopefully" because I think anyone with any sense at all realizes that police agencies and prosecutors have far more important problems to keep them busy. Such as real murders and real rapes and real instances of arson and armed robbery.

  And yet it
is exactly such a topsy-turvy misallocation of society's policing resources that advocates of DRM and the panoply of laws that surround it are demanding. That's why these liars—to call them by their right name—insist on using loaded and hysterical terminology such as "online piracy."

  Can you imagine the ridicule that would be showered on Starbuck's Coffee if that company demanded that the theft of a cup of cappuccino or a caramel latte be placed in a special category and treated by police agencies as a serious felony? "Caffeine piracy," let's call it.

  Every late night talk show host in the country would be making jokes about it. So would stand-up comics—and every person in the country who drinks coffee, for that matter.

  Yet the claims made by DRM advocates are taken seriously. No jokes are made about it by comedians—and Congressmen solemnly nod their heads and vote for this chicanery.

  Why?

  Well, here's where the next lie comes in. If you push a DRM enthusiast on the matter of their terminology, most of them will grudgingly admit that the hysterical words they use are . . .

  Accuracy-challenged, let's call it.

  But they will then immediately advance a new argument. They will argue that while it may be true that each individual instance of "electronic piracy" is no more than a minor misdemeanor, the problem taken as a whole has assumed such gigantic proportions that it amounts to a "social felony."

  Mind you, this argument is not as silly as it seems at first glance. It is indeed true that many violations of the law which, on an individual level, are not taken too seriously by society, would be taken very seriously if they became a general habit practiced by a large section of the population.

  For example, it is against the law to urinate or defecate in public. But, in the real world, nobody worries too much about it. Why? For the good and simple reason that it doesn't happen all that often, and when it does happen it usually involves someone caught in a bad situation who found themselves forced to go off into the bushes somewhere to relieve their bladder or (more rarely still) void their bowels. If they are "caught" in the act, the person is more likely to be the subject of ridicule than of legal charges being pressed against them.

  Now and then, to be sure, a particularly obnoxious instance of this crime occurs. A drunk, for instance, urinating against the side of a building in plain view of everyone. And, in such instances—if a policeman happens to be in the vicinity and spots the crime underway—the culprit might actually get arrested.

  But let's suppose, for a moment, that this activity became the common practice of a large section of the population. Hundreds of thousands of people—millions of people—relieving themselves anywhere they chose, every day. Urinating and defecating on other people's property, on sidewalks, in parking lots, in schoolyards . . .

  Oh, yes. Society would suddenly change its attitude on the matter. And correctly so, because leaving aside any issues of propriety if a very large number of people started urinating and defecating anywhere they felt like it, you'd very soon have a serious problem of public hygiene on your hands. Epidemics would be the sure and inevitable result.

  And that is the claim advanced by DRM advocates. Electronic piracy, they insist, has become a veritable epidemic in the land. And therefore this illegal activity—though it may be no more than a misdemeanor in any specific instance—has to be treated as seriously as a major felony.

  So . . .

  It's really not that silly to call it "piracy," after all!

  Yes, it is silly. Because, once again, they're lying through their teeth.

  They're lying twice over, in fact, because there are two lies involved in this claim.

  The first lie ought to be obvious. DRM advocates are systematically obliterating the distinction in the real world between actual theft and what I will call "virtual" theft.

  Remember: electrons are not molecules. If you get nothing else from reading this essay, do yourself a favor and memorize those four words. They will serve you well as a shield against hogwash.

  Here's what I mean:

  Again, I speak as an author who depends entirely on royalties for my livelihood. If a thief goes into a brick-and-mortar bookstore and steals a molecular copy of one of my books—i.e., a "real book.," with paper and ink and a binder—then I have indeed suffered a real loss.

  The loss, by the way, is not so much in the theft itself. That's because in most instances, the thief wouldn't have bought the book anyway. So it's not as if I lost anything from him.

  The real loss to me derives from the fact that because real books are molecular objects, they weigh something and they take up actual space. That means, in turn, that no bookstore can afford to keep an unlimited number of copies on their shelves. Typically, in fact, except in the case of a very small number of top-selling authors, an author will have no more than one or two copies of a given title on the shelves of a bookstore, if he or she has any at all. And if that one copy is now gone because a thief took it, that means nobody else can buy the book until the bookstore eventually notices its absence and gets a replacement for it.

  Which takes many weeks, usually two or three months. Many weeks during which a possible sale I might have made cannot happen because of the theft.

  But electrons are not molecules. A virtual theft—which is what we're talking about, when someone downloads an electronic text without the permission of the author or publisher—has no such equivalent effect. The thief—excuse me, the "pirate"—has indeed swiped something from me. But unless he would have paid for it otherwise, which is a highly dubious proposition, I have not actually suffered any material loss. Why? Because his theft does not in any way prevent a legitimate purchaser from buying the product—nor does it cost me anything to replace the stolen virtual product.

  That last point is very important. If you think about it, in what sense has even a petty theft occurred—when nothing material has been taken?

  The answer is: in no meaningful sense of the term that doesn't make hash out of the English language. The fact is that not only is it absurd to label electronic copyright infringement as "piracy," it's even absurd to label it as "theft."

  That doesn't mean that copyright infringement isn't a crime, because it is. What I am pointing out is simply that DRM advocates are constantly mutilating both the language and basic legal concepts in order to swindle the population into supporting them. What they are doing is no different than if a man demanded that a neighbor of his who walked across his lawn without permission be charged, not with trespassing—which he did commit—but with "grand theft, personal space."

  Again, if such a case become widely known to the public, you can rest assured that late night talk show hosts and stand-up comics would be making jokes about it. But when DRM advocates advance exactly the same twisted logic, they are taken seriously.

  This is one of the favored tactics used by DRM advocates. Constantly, in every way possible, they find ways to distort the issue by what you might call semantical inflation. Copyright infringement becomes "theft," and "theft" becomes "piracy." By this means, a problem which in the real world—as I will demonstrate in later essays—is no more than a petty nuisance, becomes transformed into an impending social catastrophe.

  Again, this is not rocket science. If DRM advocates wish to argue that "online piracy" has become so widespread that they are in fact suffering tremendously from the phenomenon taken as a whole, then . . .

  Goddamit, they have to prove it. They cannot—as they do now—simply point to the existence of many instances of unauthorized downloading of their product as if, by itself, that substantiated their claim.

  Sorry, it does not. In fact, claiming that it does is ridiculous. People have been "downloading" copies of books for centuries without paying the author or publisher a penny for the privilege. They do it every time they check a book out of the library, every time they buy a used copy instead of a new one, every time they lend or borrow a book from a friend.

  Traditionally, that was considered f
air use. And—miracle of miracles!—somehow authors and publishers managed to make a living for centuries despite all of this activity. In fact, as I will argue in later essays, the activity itself was critical to their ability to stay in business in the first place.

  Remember my last essay? I told you then that what was involved in this swindle was that DRM advocates are trying to get fair use eliminated altogether. And now you can begin to see how it works.

  To be sure, DRM advocates advance a few claims that purport to "prove" that the phenomenon of widespread unauthorized downloading of their product—"virtual theft," to use my term—does indeed cause them tremendous losses. The most commonly known instance of such a "proof" is the claim constantly trumpeted by the music recording industry that their profits are down—and therefore "electronic piracy" must be the cause.