Insta-click send-a-letter (not just an email, but a hardcopy) to all significant government parties regarding the new Canadian copyright bill (which is bad). Register your discontent! You know, if you’re Canadian.
Scott asked me for my take on the new Canadian DMCA (and make no mistake, that’s what it is).
Most people know I tend to be somewhat “copyleft” when it comes to my attitudes on copyright; I favour lower terms of private ownership of copyright for a larger public domain, flexible and relatively wide-ranging fair dealing laws, and legal systems that encourage trial use rather than full immediate purchase of intellectual property. Canadian statutory law contains no protections under fair dealing for parody or transformative use; the protections that exist for me when I use Photoshop to make Iron Man say “fuck” exist solely in jurisprudence, and every serious intellectual property law expert in the country has recommended to a number of governments that, hey, maybe we should enshrine that in statute.
Needless to say, Jim Prentice’s bill does none of these things. Michael Geist has already explained at length how the expansions for fair dealing contained within the bill (and fair dealing in general) are almost wholly nullified by the digital lock provisions. This bill makes most fair dealing illegal simply by having the original producer of content put a basic digital lock or DRM on their material. (Or, more simply, your right to make a copy of a song on a CD that you own ends the moment the CD has a simple DRM on it. The tools to evade that DRM? Illegal as of this bill.)
In short it’s a terrible, terrible bill - a sellout to American lobbyists that completely ignores all the effort Canadian citizens made earlier this year to say “hey, this is a shitty bill and we don’t want it.” With any luck, it will be voted down in Parliament. (Of course, the Harper government may go ahead and make it a confidence vote, in which case Stephane Dion will likely run from his own shadow.
Michael Geist has more, of course.
Okay.
Look, I get that comics fans, if there is even the slightest hint of having their precious weekly comic flow interrupted, will throw a collective hissy, not unlike a three-year-old who has not yet gotten his juice. (Actually, this is unfair. Juice is a lot more important than comics are.) And I understand that a lot of comics fans have the legal sense of your average groundhog.
But, for the life of me, I don’t understand this argument, which I have seen advanced numerous times around the internets:
“Siegel and Shuster’s heirs do not deserve to control the rights to Superman, because they had nothing to do with his creation.”
See, that first part is fine. It’s a perfectly reasonable - if someone brutal - argument for expiry into the public domain upon creator’s death, and I actually agree with the general thrust of it, seeing as how I think public domain rights are being steadily trampled in favor of corporations. The problem is that the unspoken (or, hell, even spoken) corollary of this argument is:
“DC Comics deserves to control the rights to Superman.”
There is nobody working at DC Comics today who was involved in the development of the key elements of Superman, you know. Not a one. They’re all dead, or extremely, extremely retired. I can understand the argument that the Siegel estate doesn’t deserve a share of Superman at this point; the co-argument that a legal fiction does, however, completely contradicting the basis of the first argument, is just stupid.
The decision came down yesterday that the estate of Jerry Siegel has won the copyright to Superman - specifically, “all Superman material in Action Comics #1.” I’ve already seen in a few places people worrying about how this may BANKRUPT THE COMICS INDUSTRY BY SETTING A PRECEDENT!!!!one!!1! Or, more amusingly, the legion of retards commenting on the Newsarama blog getting indignant that the Siegel estate is trying to “destroy Superman” and that Siegel and Shuster’s estates are simply greedy bastards trying to steal money rightfully not theirs.
(Inevitably, whenever Newsrama posts a legal story, it gets a shitload of comments. Equally inevitably, the level of ignorance from people who think the law is just as simple to define as a Green Lantern power ring’s weakness is displayed in full force.)
Don’t worry. The implications are smaller than you think. The decision - which, incidentally, is really quite readable for non-lawyers - can be found here.
The core of the Siegel lawsuit is that Siegel and Shuster created Superman before they began working for DC. (He was originally intended for a comic strip, but they decided to sell him to DC for publication later.) Changes to the United States Copyright Act in the mid-70s gave creators one-time rights to request control of copyrighted works they sold in the years prior (on the basis that, given the change in copyright law - notably the extension for which works remained in private domain - they might have chosen not to sell). The Siegel case has been an example of this sort of attempted recursion.
The Superboy and Superman lawsuits over the past twenty-plus years have been (and this is personal opinion, having studied the case previously) basically one long case of DC Comics being moneygrubbing assholes, because on the merits of the case Siegel had this one in the bag (Shuster has a tougher case due to some contractual issues), and DC/Time-Warner have simply been fighting a stall game for as long as possible on the basis that the $1 billion (yes, billion) per year Superman franchise generated more money than it cost them to pay lawyers to stall.
In terms of implications for the comic industry as a whole - not much, because this isn’t a landmark decision or anything. Most of the major contentious or potentially contentious work-for-hire properties have been settled by contract or established in caselaw - Joe Simon on Captain America, Bill Kane on Batman, etc. (Maybe Steve Gerber’s estate can make a case for Howard the Duck, as I’ve heard he invented the concept independently of Marvel, but for most properties in comics it will generally be very hard to prove that the work was not created on a work-for-hire basis, if not contractually invalidated right from the get-go.)
In terms of the implications for Superman, they too are less than you think. Yes, the Siegel estates now control, to an extent, the copyright of Superman, but copyright for most of Superman’s fellow-concepts - such as Jimmy Olsen, Lex Luthor, Metropolis, The Daily Planet, et cetera - rest firmly in DC’s hands. (Copyright in this regard is a bitch to navigate - Superman’s copyright covers his relationships with the aforementioned, but not necessarily the aforementioned. Lois Lane, who unlike most of the Superman mythos first appeared in that fateful first issue of Action Comics, may fall to the Siegels.) More importantly, DC Comics completely controls and owns the trademarks for Superman - the big red S, the curvy-text Superman logo, the costume, and so forth. Siegel’s estate is not going to take Superman away from DC; it’s functionally impossible to do so until Big Blue passes into the public domain, which won’t be for about another twenty years (barring another corporate-inspired extension of private domain rights, of course).
The major point is that Siegel’s estate will now be owed back pay, I believe, on their rights as owners of the Superman copyright - the amount of which, of course, be contested by DC as well, and on reasonable grounds (namely the “look, we did all the work for all those years” argument, which is not invalid). Also note that DC retains exclusive control of Superman’s international copyright - the Siegel decision merely reflects domestic copyright.
However, DC will have to start forking over monies generated by Superman, most notably those from Smallville - prior to this decision, DC was holding out that Smallville was a show about a “young Superman” rather than “Superboy,” to evade paying the Siegels their share of profits from the show in the wake of the decision that put the rights to Superboy in the hands of the Siegels last year. The point, obviously, is now moot. Of course, they won’t fork over everything, because DC is responsible for producing the show and the Siegel estate doesn’t want to bother with that work. It’ll be a straight-up profit-sharing deal.
Of course, maybe DC will just change his costume. Then again, we know how well that worked out the last time they tried it.
SUPERMAN: …maybe I’m not explaining this properly.
WONDER WOMAN: No, you’re explaining it quite well. I just don’t agree with the concept.
SUPERMAN: How can you believe that writers don’t deserve compensation for creating intellectual property?
WONDER WOMAN: Because they don’t create it. Artistic inspiration flows from Apollo.
FLASH: The guy over on Earth-50 who’s in the Authority?
WONDER WOMAN: Very funny, Wally. The god Apollo. Music, poetry and literature are his province.
BATMAN: I’m Batman.
SUPERMAN: Uh huh - look, Diana, even if I conceded that all artists owe a debt to Apollo for being able to create art - and I don’t, I’d like to stress that - then the residual fee for screenwriters is akin to royalties for novelists or playwrights, and an expression of consideration for allowing the work to be created.
WONDER WOMAN: But Apollo -
SUPERMAN: All right, for allowing humans access to the work that sprung from Apollo’s noble brow, okay?
WONDER WOMAN: Regardless of quality, it seems.
SUPERMAN: What’s that supposed to mean?
BLACK CANARY: I think she’s talking about the way Barry always used to bitch about that television show.
WONDER WOMAN: Precisely.
FLASH: You know, he really hated that they got Mark Hamill to play Trickster instead of him.
SUPERMAN: Regardless of the other qualities of that television show, you have to admit that it did poorly in the ratings and was cancelled, which means that, if you think the writers wrote a bad show, that they were thus compensated appropriately.
BATMAN: I am the night.
WONDER WOMAN: Sure - but why not simply allow these writers to negotiate individually? I see no need for a union in this instance. We are not speaking of workers toiling for a single corporate entity. There exists a market.
SUPERMAN: An extremely limited one. There are only six production studios in America, and they control just about all the production and all of the distribution of entertainment media in the country and the majority of it internationally.
WONDER WOMAN: But nothing stops these writers from attempting to leverage one studio against another for their own gain.
SUPERMAN: The self-interest of the studios keeps that from happening. Say I’m a writer. Why would Sony seek to give me a larger share of the profits than Fox?
WONDER WOMAN: To attract the best talent.
SUPERMAN: Writers will come work for me anyway, because people with an innately creative bent, as much as they want fair compensation, want to create more. If I discourage one in five writers from ever working for me, that still leaves eighty percent of them willing to work for me at the rates that I set.
WONDER WOMAN: But then quality will out, and the public -
SUPERMAN: Remember how much you complained about 300?
FLASH: Oh, god, don’t get her started again.
WONDER WOMAN: It was not historically accurate! Leonidas was not an honourable man, and the Spartans were resolute pederasts, and -
SUPERMAN: My point is that the public’s tastes are both fickle and often ignore excellent work.
BLACK CANARY: Somebody’s still not over their novel selling poorly.
SUPERMAN: I’m not saying The Janus Contract was a masterpiece, Dinah. I’m just saying it was better than The Da Vinci Code. I mean, we’ve gone back in time. I’ve met Da Vinci, for Pete’s sake…
BATMAN: The city calls to me.
FLASH: That reminds me, when is J’onn going to get back so we can swap Batman’s mind out of that chimp and into his own body?
What’s that, you say? A comic that moralizes against illegal downloading featuring Disney characters? Why, it’s almost as if Disney is an enormous corporation with a vested interest in maximizing its intellectual property rights and getting public opinion on its side!
I, personally, am waiting for the day when Batman beats up a nest of villainous music pirates.
MUSIC PIRATE: Music needs to be free!
BATMAN: You need to be in jail.
If you want to read one of the most startlingly bullshit interviews I have seen in ages, go here and read Marvel publisher Dan Buckley’s comments on their new online initiative and illegal downloading.
It’s almost infuriating. The level at which Buckley flatly refuses to engage perfectly valid questions and concerns about Marvel’s digital model is just insane. A perfectly fair comparison to Rhapsody is mentioned, and Buckley says “no, it’s not like that” without even bothering to explain why. (The answer, incidentally, as to why Marvel’s online comic movement isn’t quite like Rhapsody is that culturally we’re used to paying to listen to music we don’t own, but we’re not used to paying for books we don’t own and want to read. Of course, that particular difference is one that actually makes Marvel’s digital position worse rather than better.)
And, of course, Marvel’s strategy towards illegal downloading is kept deliberately vague. Questions as to how the torrent model that exists - which is blatantly superior to Marvel’s in a large variety of ways for the consumer - will be dealt with are left unanswered, except to say that Marvel is going to be taking its cues from how the music industry has handled illegal downloading, which is like taking tips from a caveman on how to beat Gary Kasparov in a game of chess.
But it gets worse! Explaining the choice of initial selection and how new comics will be added each week, Buckley says: “This will include providing marketing support for our publishing and entertainment initiatives…”
No shit. Here is the list of comics currently available via Marvel’s digital delivery system. The majority of these comics can be summed up as follows:
1.) Failed miniseries and ongoings which didn’t particularly impact the market and which have no serious sales value (Gambit, District X, Jubilee, Doc Samson, et cetera), including whole runs of series that you can now get at remaindered bookstores (Spider-Man’s Tangled Web).
2.) One-shots not easily collected in trade format or elsewhere (Civil War: Choosing Sides, for example).
3.) …and first issues of things Marvel wants you to buy in trade or single issues (Moon Knight, Civil War, Runaways, Captain America, Immortal Iron Fist, Annihilation, et cetera). For longer-running titles, Marvel’s pretty blatant about this, giving you the chance to read the first issue in each trade.
There is a name for small teaser portions. It is called advertising. This is what Marvel’s entire digital initiative amounts to: you are encouraged to pay money to buy the real comics. They’re not even particularly shy about it, because when you read the first issue of any given comic that you’ve paid to read, they remind you to buy the collection.
Granted, Marvel’s strategy is to use the digital model to encourage new readers. That’s fine. I am down with encouraging new readers. But last I checked, not many people were horribly encouraged by the prospect of paying to read the same fucking comic twice.
And of course there’s a model they could have used. Amazon’s putting it out there right now with their Kindle reader: “you buy the book for a very low price, and anytime you need to download it from us, we let you.” It’s a fantastic model for a publisher to adopt, because it essentially lends control of a person’s library to the publisher. (I’m of two minds about it, personally, but there’s no question that it would be good for Marvel.) Use some proprietary software to keep illegal trading of the comics to a minimum and Marvel could be raking in bucketloads.
Sweet Jesus, how is it possible for a company to fuck up this badly?
Very quietly, just before Thanksgiving so nobody would notice, Marvel and DC sent cease-and-desist letters to zcultfm.com. For those of you who do not know, zcultfm is - or, rather, was - the comic book torrents site, with an immense library of torrents, many of which even worked.
It is also how I have first read most of the new comics published over the last three years. Every single comic parody I’ve done had its origins in DCP scans. (I have a scanner, but it’s not a very good one.) For those wondering, I generally delete most of my downloaded comics after a single read. With the exception of Legion of Super-Heroes, I have not purchased a single issue of a comic book since about 2002 or so.
So I must be a downloading leech, only costing DC and Marvel money. Right?
Well, let me put it this way. This is most of my collection of trade paperbacks and comic hardcovers.
DC? It’s responsible for me buying All Star Superman and Seven Soldiers of Victory and Fables (all of it) and Y The Last Man (all of it) and The Losers (all of it) and Pride of Baghdad and War Stories (which I never would have even known existed were it not for a Garth Ennis megatorrent I downloaded mostly to reread the issues of Hitman I sold in anticipation of collecting the trade paperbacks which were halted mid-run - and incidentally, DC, fuck you very much for that) and Light Brigade and Formerly Known As The Justice League and Gotham Central.
Oh, and if any smaller/indie publisher feels like getting in a snit, I’ll tack on Queen and Country and .303 and the Busiek Conan and The Five Fists Of Science and… well, I could go on.
Comic downloads transformed me from being a guy who bought one comic book per month and the very occasional graphic novel or trade collection, and into a guy who buys two to four trades a month (and sometimes more). I wasn’t going to go back to investing in single issues, because single issues are a terrible value for money and a horrible pain in the ass to store and I can’t lend them out easily when I tell somebody “hey, you should totally read this.” And if you go to zcult and read the postings from the fanboys there, it’s quite obvious that I represent the norm for comic downloaders, despite the fact that our doing so irritates Dan Slott terribly. (PS: Dan Slott, She-Hulk is on my trade to-buy list, although right now I’m steadily working my way through the Bendis/Maleev Daredevil books.)
And the important thing to note here is that DC and Marvel, unlike the incredibly backward music companies they’re trying to imitate here with their painfully stupid legal action, do not have a realistic competing model to offer. Marvel’s pay-for-comic service, despite my kind words previously, has a clunky interface, is slow, doesn’t display the comic work as well as a basic .cbr or .cbz file, doesn’t have a good selection… with a lot of improvements it could be a realistic model, but since I wrote my approving post, everything I’ve heard indicates that Marvel considers their currently mediocre-at-best offering to be a finished, final-stage product, which only earns them a “what the fuck?”
I mean, at least the record companies, when they shut down Oink, could point to iTunes and say “look, we offer mp3s for sale for money, please use that.” And despite the fact that iTunes is kind of a ripoff, at least it’s an option. DC and Marvel don’t even have that. If I want to read the old Roy Thomas Infinity, Inc. run, or the original Speedball ongoing, I have three options: 1.) Wait around for them to collect it in trade, 2.) Spend a small fortune on back issues I don’t want to store in the first place, or 3.) Download the comics torrents. Quick, which one do you think I’m going to pick?
How sad is this?
What’s worse is that they’re just antagonizing people to no good end, because everybody knows how torrent filesharing works now. Here’s the short version:
MAJOR MEDIA COMPANY: Hey, you! You’re downloading the product I made without paying money! Stop that at once!
INDIVIDUAL DOWNLOADERS: Uh, no.
COMPANY: Oh, that’s how it is, is it? Well, I’m going to shut down your torrent-sharing website!
DOWNLOADERS: Fine. We’ll just go over to a different site which will take you three to six months to find out about and shut down.
(Repeat until heat-death of universe or The Rapture, whichever comes first.)
I simply can’t stress enough how shortsighted, how ignorant, how goddamned lunkheaded DC and Marvel are being right now. They aren’t just shooting themselves in the foot like other media companies; they’re shooting themselves in the head. Internet downloading and the word-of-mouth generated by it has been quietly driving their business for the last couple of years now and they want to kill it. It’s just staggering.
