E-Books: Copyright Infringement, Theft, Materiality and the Virtual

Last night, as I was heading to bed, a guy called Mark Kohut, whom I know from various Pynchon-interest intersections, published a copy of a letter he was planning to send to the New York Times. The contention turned over a column on the NYT’s website called Pogue’s posts in which David Pogue stated that he had downloaded a copy of “The Bourne Identity” e-book, knowing it was unauthorised (having failed to find an e-copy legitimately: which, by the way, is total rubbish), and had sent a cheque for $9.99 to “the publisher” instead. I want to write about a few of the issues here as I tweeted Mark back with a statement that conflating copyright violation with theft is actually incorrect. I then deleted the tweet as I was going to bed and realised that it might just be over-inflammatory. That said, Mark saw it and responded (graciously). I agree with Mark that Pogue’s broadcast of this availability is problematic, but I also think it’s worth reasoning through some of the unspoken assumptions of the model here. Before I begin, I want to stress that all examples in this post are purely hypothetical; thought experiments designed to expose the tangled relations in the current setup. I buy all my books.

The Death of the Book

A basic moral precept/starting proposition to begin. If you disagree with this, the logic from here on may also seem flawed: We live in a (neoliberal) capitalist world. Under that system, which is far from perfect, artists, writers, publishers and all involved in the publication process should be compensated for their work (ideally, I’d like this done through arts programmes, rather than selling their work, but that’s a different story). Many artforms seem more vulnerable than most products, though, to being seen as commodity fetishes. Commodity fetishism is Marx’s term under which, instead of seeing the social relations, we see only the material relations; we see things, not people. In this instance, we see a CD or a slim book and feel that, instead of paying for the artist’s labour, we are paying for the item which is, in itself, cheap to produce. In the twentieth century, before electronic books and music, it was necessary to have a physical medium present to read each book or play back recorded music. This was bad enough for commodity fetishism, but now that we have the electronic form only, many believe that as there is no cost associated with the production of the material item (there is no material item), there should be no cost in its acquisition. This is a flawed argument, as I’ll go on to show, but there are also flaws on the other side as well.

Copyright infringement is the unauthorised sharing (not receiving) of somebody else’s “intellectual property”. As Richard Stallman, outspoken founder of the CopyLeft movement, sees it, however, this term “intellectual property” is problematic: “it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects”. In Stallman’s view, one of the problems is that this term conflates three very separate areas of law (copyright/patents/trademarks) with different functions into one crude analogy. When thought of as “intellectual property”, copyright violation becomes analogous to theft. In law, however, it isn’t. Copyright violation is a civil suit: you have caused injury to a party and may be called upon to provide redress that will be enforced by the legal framework. Theft, on the other hand, is a criminal matter that can be dealt with by imprisonment. The difference between the forms rests on deprivation of tangible property that occurs in theft, as opposed to only potential deprivation in copyright on a probabilistic basis that can never be fully demonstrated.

To explain this, consider theft and copyright infringement in various hypothetical circumstances. If I take a material object of yours, I have gained that object at your cost; you no longer have it. Conversely, let’s say that you are selling your music and I copy one of your CDs. You still have the original CD. I have a copy of the music on the CD. What has been lost is not the material item, but the future potential for you to sell the product of your labour to me. The equivalence between future potential earnings and theft cannot be a one-to-one ratio, though: there is no guarantee that I would have bought your CD in the first place. In this instance, there has been no material disadvantage to you. At the other extreme, if I copied your CD so that I didn’t have to buy it, then the loss to you, mediated through finance, is almost identical to theft. There’s a whole spectrum of grey areas in between when we work with this artificial model: lending CDs to friends, buying one copy of the CD for an entire household, the instance when downloading prompts someone to buy something they wouldn’t have otherwise, etc. and it’s not clear, in many of these, that it is either equivalent to theft or copyright infringement because the analogy to real property doesn’t fully hold.

So far, so good. Now let’s consider this particular case. Downloading a product (that doesn’t exist in retail form), the content of which is identical to a product that does exist in retail form, and paying the cost of the retail form. I agree with Mark that there is the potential here that the money has gone to the wrong people. I’m definitely sure that I think, differently to Mark, that this is different to theft. In fact, this is a mightily strange one.

If publishers want to take the human-relations side of the commodity fetish coin (the product is more than its materiality), then the price for which they are selling the material entity should cover, by their projections, labour + the cost of materials/transport etc. How then is the labour component of this purchase, the literature within, different to the virtualised form? I’m not sure it is. Let’s say, as another hypothetical argument, that I have bought a physical copy of a book and I then decide, for my own personal use only, to type the contents of that book, word for word into my computer and then re-package it in e-book format for my e-reader (again for my own use only). Is this equivalent, morally, to theft? I don’t think so (in fact, I’ve surely paid over the odds for the virtual version as I paid for the additional material costs on top of the human-relations costs), but many publishers think so and now include licensing terms in the front of their books thus:

No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of the publisher

This means that, in essence, publishers are trying to have their cake and eat it. They want to consider materiality and social relations as intertwined, even in the case where there is no material object. As far as I can see, the book in question in this particular case does not come with this legal licensing requirement, in at least two of the prints I checked.

There are further ethical problems with the e-book market that should also be taken into consideration. This ethical problem is called: Amazon. Amazon pays, in the UK, no corporation tax. Yet it is putting many booksellers completely out of business, forcing independent artists to sell their art at a far cheaper rate than is viable, and monopolising the e-book market via Kindle’s lock-in while taking vast chunks of the profit. I refuse to condone Amazon’s behaviour and, while they behave in this way, it seems to me that it would be far less of a moral compromise to pirate an e-book and pay for the material version, direct (albeit with my already stated wariness, alongside Mark, about where the money goes), than it would have been to have bought the paperback from Amazon. Even better, buy a paperback copy from a high street retailer (preferably a small, independent).

To conclude, as I’ve gone on long enough (even though only scratching the surface): I think, in ethical (rather than purely legal) terms, the debate here is far more complex than a straight comparison to theft. At the same time, I appreciate exactly where Mark is coming from: publishers are here caught in the middle and being blamed for things that aren’t their fault. The only way that I think this can be resolved is through a protracted discussion of exactly what is being sold in the case of a material book vs. an e-book, how that relates to commodity fetishism and what can be done to ensure the continued viability of bookselling and publishing, in material and virtual forms, when monopolies like Amazon are creating huge problems both financially and ethically.