OK, WORLD WIDE WEB ROYALTIES for authors aren't the same as negligent environmental catastrophes that destroy people's health and lives. And I lack certain of Julia Roberts' ... assets.
But from late 1997 until early 2001 I made a living playing Erin Brockovich's copyright-obsessed second cousin in San Francisco federal courts. This followed most of a year working what must have been 80 hours a week as a National Writers Union volunteer, trying to get the union to hire me; another nine months working what must have been 60 hours a week as a union half-time employee, trying to get hired full-time; an only marginally saner two-plus years at 40 hours a week as the NWU's assistant director for public relations and membership development, and director of licensing. Striking out on my own, I saw my income continue to rise improbably in inverse relation to the amount of dirt under my fingernails, until finally just about the only discrete task remaining was the surreal and recursive exercise of preparing a monthly invoice.
"Well, you always said you wanted to write fiction," a friend told me. He was referring to the invoices.
Yes, my fellow lazy workaholics, there is a Zen to success. This is about the little unlicensed lawyer fighting to get out from inside all of us. (Oh. You mean it's just me?) It's also about how a life was empowered, maybe even saved, by the personal computer and the Internet – not because of any of the futuristic babble you've read about, mind you, but simply because those tools provided a platform for the quirky form of political activism in which I was specializing and for which I discovered a marketable gift.
The big deal in the new economy is "branding," the signature stamp of one's product or service. It took me a while to figure out what to call myself at a cocktail party in three words or less. Then it hit me: I was a "copyright litigation consultant." And, man, it was a wild ride. My first case settled for more than seven million bucks. The second was poised to make even more money for certain folks (including an additional relative chump change for your humble narrator), as well as to slam-dunk an important area of new law, before the United States Supreme Court stepped in with its other outrageous writ of certiorari of November 2000. The Supremes ultimately ruled in favor of authors' electronic rights, and that's very good news. But the union, and not an independent consultant, will properly be playing point on future litigation. I'm back full-time in the lucrative field of freelance writing.
Over the course of seven years I can honestly say that I was never once shaken in my belief that I was on the side of the angels in the legal and policy dispute over how creators should share in the spoils of new technologies. Having efficiently rationalized an array of envelope-pushing tactics, I proceeded to deploy them, one by one. I had no master plan, only an unfathomable faith that every time the Lord closed one door He opened another. But I wasn't the only worthy resourcefully playing the cards fate dealt him. Nor, after the standard-issue jokes, should we forget that behind virtual lawyers must be real ones, good ones, without whom a lot of sensible ideas, whether public- spirited or self-aggrandizing, never achieve liftoff.
Welcome, then, to the sausage factory of complex litigation, which also involves elements of Kabuki dance. The prelude is negotiation. Next comes the act of being rejected or ignored. Whereupon, backed by entrepreneurial legal teams who agree that I haven't taken a vow of chastity and poverty and that ethics aren't a suicide pact, I load and fire proverbial smoking guns and pray that they will register in the olfactory glands of the judicial system.
At the end of the day – an attorney manque never misses an opportunity to drop in an "at the end of the day" – a consultant is just someone who helps you screw up with confidence. Pull up a chair while I share some other tricks of the trade.
* * *
DESPERATE TIMES CALL FOR DESPERATE measures, and in January 1994 I was broke and broken. A few months earlier my wife had moved out, leaving me most of the time with our two sons, ages 3 and 5. (We later reconciled and added a third child, a daughter.) I sat besieged in the basement office of our rented house on Vine Street in Berkeley, which had flooded, soaking voluminous disorderly notes and files, including backup for several years' worth of delinquent tax returns.
My desktop computer at the time was a Korean-made IBM clone, Leading Edge, with a harshly flickering, slate- tinged black-and-white monitor with yellowish squared-off characters, a primitive 286 chip, a full megabyte of RAM, a mammoth 30-megabyte hard drive, and – what seemed like magic at the time – a 2400 baud modem. Using the latter, I logged onto my brand-new account with an Internet service provider called Netcom, activated telnet (an early text-only server), and did what any self-respecting narcissist would do: I looked for myself in cyberspace.
What I found was an injustice.
Articles I had written for People, Lingua Franca, The Washington Monthly, Mother Jones, and other magazines were being offered for sale online on full-text databases. I'm not talking about free informational links or about interested researchers who used the ease of copying on computers to pass stuff around. I'm not even talking about an amalgamated file-sharing system such as the one Napster would develop for musical works. I'm talking about huge for-profit corporations in the specific business of pirating previously published material. The basic algorithm was that the computer user typed in a credit-card number, clicked a button, and got the article, in the form of either "ASCII" text or a facsimile image. The database company forwarded a portion of the fee to the magazine publisher. But not a dime went to the writer, who wasn't even asked for permission to retransmit his work in this fashion.
This perhaps not terribly surprising manifestation of the screwing of a small population of powerless independent contractors happens to matter, for reasons both micro and macro. In the small sense, the fight over electronic rights is just an update of an old turf war with huge economic implications for freelance journalists and their brethren hacks. Reselling articles on standalone CD-ROMs or via broadly accessible web interfaces doesn't differ qualitatively from syndicating, anthologizing, or any of a number of other secondary uses by which poorly compensated freelancers have always paid their rent. In the Copyright Act of 1976, writers, photographers, and graphic artists won an important principle on this score: absent contractual arrangements to the contrary, the law recognized that a non-employee's contribution to a "collective work," such as a magazine, belongs to the individual creator, with the publisher merely licensing the right to use the work one time.
Overlaying this historical battleground of author-publishers relations is the new phenomenon of the computer's revolutionary democratizing potential. A noble ideal, for sure, but it collides with a companion phenomenon of rapid conglomeration in the publishing industry, which now combines telecommunications, computers, and multimedia information and entertainment. "Content" is being privatized on the back of a national information infrastructure subsidized by taxpayers. What we're witnessing is a sequel to the story of the railroads and the robber barons. Publishers would have you believe that their interests and those of independent creators are identical and that the enemies are consumers who want to freeload. But the truth is that the diversity and vitality of journalism, literature, and the arts stand to suffer if intellectual property consolidates in the hands of the AOL Time Warners of the brave new digital world.
The solution isn't some mystical withering away of the very concept of copyright – an impossibility under capitalism. More realistic goals are things like the expansion of "fair use," which will be brought about by the same kinds of multilateral negotiations that nurtured public libraries. At this moment in history writers should be elbowing their way to a place at that great bargaining table. We need a royalty system like the one set up after the invention of audio recording by the American Society of Composers, Authors and Publishers – but it should be a kinder, gentler ASCAP that doesn't scorch the earth in search of payment for every bit and byte.
* * *
A MONTH BEFORE MY MAIDEN Internet voyage, the National Writers Union had taken the lead in the fight for electronic rights by supporting Tasini v. Times, a landmark copyright case by a group of writers, led by union president Jonathan Tasini, against The New York Times, Lexis-Nexis, and other print publishers and database operators. I agreed with Tasini that this was the writers union’s “wedge” issue of the 21st century – one of the keys to the conundrum of mobilizing our new kind of labor force, which is not bonded by a common physical workplace. Puttering around online, I found that something like a third of our Bay Area Local members were, like me, being knocked off by for-profit database companies. What the Tasini lawsuit needed, I felt, was some complementary organizing muscle.
We called the campaign “Operation Magazine Index” (OMI), after one of the products of our first target, Information Access Company of Foster City, which was in the process of being sold by Ziff-Davis to the Thomson Corporation for $580 million. The way it worked was that I’d print out a writer’s database “hits,” explain the problem, and invite him or her to join the union and/or the campaign and make a small contribution toward some PR shots across the bow. The response was unprecedentedly favorable and included the participation of all our local heavy hitters: Isabel Allende, Todd Gitlin, Alice Walker, Ben Bagdikian, Jessica Mitford. OMI’s biggest booster was Nicholson Baker, the bestselling novelist then living in Berkeley. In October 1994 Nick penned a New York Times op-ed piece, “Infohighwaymen,” that put us on the map across the country and, with the help of Internet listserv and newsgroup postings, literally around the world. (The Baker essay can be viewed here.)
Information Access Company wasn’t listening. But another company was not only listening but courting. It was called UnCover and it had been started by the Denver-based CARL Corporation, a for-profit spinoff of the Colorado Alliance of Research Libraries, which marketed library automation services. CARL’s chairman Ward Shaw and president Rebecca Lenzini made immediate overtures to the writers union to establish a royalty system at UnCover, which provided fax copies of articles ordered from an Internet index of material from 17,000 popular magazines and academic journals – the largest such database in existence.
On closer inspection it was no mystery why UnCover was so eager to make a deal. Unlike companies that delivered online text to the mass market, UnCover wasn’t a true database but a kind of self-appointed private extension of the interlibrary loan system. It had few solid arrangements with publishers, whom it was ripping off as insouciantly as it did writers. One of the company’s practices was to send a modest “royalty” check to the publisher after the fact, theorizing that the subsequent deposit of that check, perhaps by an office flunky, was tantamount to a license. As Becky Lenzini acknowledged in a letter during our negotiations, this was a “technical violation of prior permission.” A royalty scheme in association with the National Writers Union wouldn’t change all of these facts on the ground, but it could theoretically inoculate UnCover somewhat from infringement claims.
At fewer than 1,000 orders a day, many from obscure journals and all via a non-cutting-edge technology, UnCover was a boutique in the exploding information industry. Still, it held the promise of eventual expansion into online full text, and Knight Ridder Information (owner of the classic Dialog network of databases) was about to buy it. Above all, UnCover offered a positive model for a marketplace solution to the e-rights puzzle. I argued to the writers union board that we had to take yes for an answer and prove that creators were willing to accept some responsibility for making copyright compliance convenient. The board agreed, largely because no one could figure out what the hell else to tell me. An activist in New York, Russell Miller, perhaps resonating to the echoes of the People’s Republic of China, sucked his thumb and came up with the name Publication Rights Clearinghouse (PRC).
PRC was launched amidst great fanfare in 1996. I became a spokesperson for the cause at those new tech crystal ball symposia that flourish in places like the Bay Area. One was a conference entitled “Digital Content: New Products and New Business Models,” sponsored by the Berkeley Center for Law & Technology at the University of California’s Boalt Hall School of Law. The keynote speaker, former Grateful Dead lyricist John Perry Barlow, did his hippie- cyberlibertarian shtick in which he argued, as best I can tell, that as soon as we all stop worrying so much about getting paid for our work we’ll start getting paid for something else. At my panel I meekly demurred. “Before there’s an information superhighway,” I said, “there has to be a donkey trail of rights and dignity.” The center’s director, Robert Merges, the Wilson Sonsini Goodrich & Rosati Distinguished Professor of Law and Technology, then grabbed the microphone and said, “I think Irv Muchnick is right and John Perry Barlow is wrong.” It was a Kodak moment, captured on videotape, but I was never able to get a promised copy. In fact, Rob Merges would never again return a single phone call of mine, leading me to suspect that he decided that his center’s backers, Silicon Valley law firms, would appreciate it if he stopped consorting with pinkos.
I would like to take this opportunity to tell the WSG&R DP of L and T that he is full of BS.