No, Scott Turow, copyright is not killing American authors

An array of enemies, from professors to Google to the Supreme Court, are dragging the U.S. towards copyright nihilism that resembles Russia — at least this seems to be the view of Authors Guild President, Scott Turow, whose latest screed entitled “The Slow Death of the American Author” claims the country is betraying its writers.

Turow’s piece, which appeared in this weekend’s New York Times, could have been a rallying cry to support American literature. Instead, it amounts to a hysterical rant full of slipshod reasoning that shows again the Guild’s propensity for tactical errors and alienating potential allies.

The central conceit of the piece is the U.S. Constitution’s intellectual property clause, which permits Congress to grant limited monopolies to “promote the Progress of Science and Useful Arts.” Turow, despite being a lawyer, miscasts the clause to suggest it awards a constitutional right to authors and to say that the current copyright system betrays the Founders. This is misleading twice over.

First, the grant of copyright is discretionary — as with many of the other items listed in Article I, Section 8, copyright is a power (like declaring war or borrowing money) that Congress can choose to exercise when it sees fit. The clause does not, as Turow writes, “instruct” Congress to protect authors’ rights.

The second problem with the constitutional conceit is that Turow and others would likely have been appalled by the Founders’ ideas about copyright protection. This was an age when Alexander Hamilton opted for piracy as an industrial strategy, and authors’ rights were precarious at best. Indeed, foreign writers received none at all (ask Charles Dickens what he thought of the Founders’ copyright law).

In lamenting the attenuated state of U.S. copyright law, Turow also fails to mention that protection for authors has been expanded from its original 28-year term to the life of the author plus 70 years. Congress and the courts, in other words, have signed off on a scheme that locks up titles like Presumed Innocent until the year 2100 or beyond — is this not enough copyright for you, Mr. Turow?

It is these absurd terms — plus harsh penalties of up to $150,000 per infringement — that have helped to make copyright such a mess in the digital age. In an era when the internet grants every writer a printing press and a distribution system, it seems absurd to hand out century-long copyright terms.

Instead of discussing how copyright can work in digital times, Turow instead lashes out at academics and librarians who are trying to find a way to distribute neglected books and locked-up research to broader audiences through efforts like the Hathi Trust. In my experience, these people respect copyright — they just don’t like the way that some abuse it — and their goal is expanding access to knowledge. Librarians at Duke are among those who are most forcefully challenging the current state of copyright; you can decide for yourself here if they are selling out authors.

In addition to a potshot at the Supreme Court, Turow also trots out the usual canard that sites like Google and Yahoo are complicit in book piracy with “paid ads decorating the margins of [their] pages.” While book piracy is indeed a problem, Turow’s suggestion that search engines are engaged in deliberate criminal behavior is far-fetched; these are mature companies with big and legitimate customers that have scant need or interest to pander to pirates. (While Google has landed in very hot water in the past over ads for illegal pharmacies, it now says it vies to curtail the bad advertising actors.)

In short, what Turow has done is to raise an important issue — how to devise an economic means to support modern literary culture — and then alienated nearly every potential ally, not to mention distorting the picture to his own ends. If Turow and the Authors Guild are really on the side of writers, they should toss the specious and acerbic arguments and work instead to build a coalition of advocates for a fair and workable copyright regime.