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Copyright and the OP (Out of Print) Problem

Readers here know that I'm very interested in copyright issues, and that as a writer myself, I do my best to be respectful of the copyrights of others. It bothers me when creators are not compensated fairly for their work, and I personally don't like finding myself in a situation where I might want to violate copyright laws. In general, if there is content I want to read or watch, I prefer to pay a fair price for that content so that money flows to the creator's pocket.

A problem comes up, however, when one wants to purchase content, but said content is unavailable.

Infrequently, this is because the author or creator of said content wants to make sure that the content is never again available for purchase. For example, Isaac Asimov discovered once that the plot and details of one of his short stories had been unintentionally plagiarized from another story that he had read but then forgotten about. Asimov passed his payment along to the other writer and refused to let that particular story ever be reprinted.

More often, though, when one wants to purchase unavailable content, such as a book or a TV show, the content isn't unavailable due to the choice of the creator. Usually, the content has just fallen out of print (or OP for those of us in the biz), and the creator has no easy way to bring it back into print again, even if there is a small demand for it.

For example, I remember that in the early 1990s, I wanted to get a copy of J. Michael Straczynski's book on screenwriting. The new edition didn't yet exist, but the old edition was out of print and the Internet had not yet grown to the point where it would be easy to track a copy down. The local library in Forest Hills, Queens had a copy of the book, however, so I checked it out and photocopied the whole thing for myself.

But before I did that, I had run into Straczynski at a convention and secured his permission to do so. In that case, I made sure to do the right thing because I could.

In another case, I wasn't able to do the right thing until last year. I was a fan of the 1982-1983 TV show Voyagers!, which was shown on television before my family had a VCR. When I discovered that someone I knew had copies of all the episodes on VHS tapes, I asked her for a set and she generously provided me with one. It wasn't until 2007 that the current owners of the show released it for purchase (in DVD format). I made sure to buy a copy of the series as soon as it was available.

The fact is that I wanted to own the series, and I would have rather contacted the copyright owners for permission to make copies, but here's the rub – I had no way of knowing who the copyright owners were. Whereas, if the series had been available for legal purchase before 2007, I would have bought it.

I mention all this because yesterday's New York Times included an interesting Ethicist column by Randy Cohen, Flight Risk. To summarize: a group of pilots in an online forum wanted to purchase copies of a book that was out of print and was going to remain so despite their inquiries. So one of the members of the forum posted an electronic copy for people to download, and another member suggested that they send checks to the author as payment. The question, of course: was this ethical?

Cohen's answer was that it might be illegal but not necessarily unethical. However, he did suggest that if the author or publisher of the book had chosen not to reprint the book that they ought to secure permission for their online posting.

As it turned out, the author of the book returned all checks that were sent to him and through Cohen gave the pilots blanket permission to post the book and make copies. So there's a happy ending

But at the same time, the whole situation got me thinking. The publishing industry exists on many premises, one of which is that it's simply too much trouble for "content providers" (i.e., writers) to print and distribute copies of their own work in an appealing form. But if a writer has already become well-established through previous publication, and has an OP work or new work that readers might want, the writer now has options that were heretofore unavailable to serve as his or her own publisher. And readers now have an opportunity to see more of their money flow to the writer, and not to the middleman.

I know much of this has been mentioned before, and it probably will be again. I was just amused to find the issue pop up in the Ethicist.


That's how I feel about downloading Dr Who. I want to just send the BBC a check for what would be the equivalent of the licencing fee to have a TV in the UK, but only for 14 hours instead of a whole year.

That said, I think Randy Cohen is a fool, based on his occasional efforts to deal with etiquette and Jewish law, where he shows an amazing intolerance for the negiah laws. I lost any and all respect for him at that point.
I do remember that article of his, but honestly, that wasn't what I was thinking about when I posted about this copyright issue. And I'd rather not see personal attacks on people unless absolutely necessary.
I will note that for the future. I know that I rarely take that route, but sometimes I do get all knee-jerk Jewish. My apologies.
Most debates over copyright center on the purported advantages of various schemes. I think as you suggest that it's also necessary to look at the failure modes. A looser copyright regime has as its failure mode that a creator might not receive payment for a particular transaction, possibly even one that he might have gotten paid for otherwise. A stricter copyright regime has as its failure mode that a particular work might be denied any place in the collective culture, providing no benefit or enjoyment to anyone.
This is why I like the idea of a central database of copyright holders' contact information, with absence from the database being an affirmative defense against infringement cases as long as a fixed royalty is paid upon notification.
I've been incredibly frustrated with this concerning the miniseries based on works by James A. Michener. The copyright there is owned by Swarthmore College (as I recently discovered) and (as I also recently discovered) they've been sitting on the rights for years apparently doing nothing with them. I can live without Space if I have to, but I'd been desperately wanting a copy of Centennial for ages, the VHS set was out of print and forbiddingly expensive used, I couldn't get in touch with anyone at Swarthmore to answer questions about the copyrights, and so I finally secured a set from elsewhere.

If it ever does come out in an official copy, I will buy it. But who knows when that might be?
From what I understand, Harvard University owns the copyright for "Seduction of the Innocent." Part of the conditions under which Wertham left them the rights was that the book would not be reprinted (since he repudiated it later in life). And yet apparently, there was once an edition published with a special introduction that explained its historical context.

That's one of the places where we have to balance the importance of the individual's copyright versus society.
Yes, I feel the same way. There have been things (books, music, and video) that I have "bootlegged" because I had no other choice, and the subset of those that later become available legitimately I always buy as soon as possible. I would like to be able to pay the artists, and I hope that as self-publishing gets easier we'll see more of it.

(The oldest thing on my list now is an eight-episode TV show from the early 80s called Wizards and Warriors. It was fluff, it was camp -- and it was fun, and funny. And my VHS tapes, fifth generation and not so good to begin with, are slowly rotting.)
Wizards and Warriors! I loved that show! Julia Duffy! Jeff Conaway!

They really need to release that on DVD.
They sure do. I don't have high hopes, but they've been doing other older shows, so there's still some hope.
As a parent of a one-year-old, I've been hunting down copies of educational TV shows for my son to watch when he's older. Old Sesame Street episodes I've found; Reading Rainbow I'm recording, just in case.
I can't find hide nor hair of Square One TV, a show I credit with being one of the contributing factors to my thinking math is fun. A friend has told me it's not available, and PBS has announced it will not be available, and he is therefore getting illegal copies off of video-sharing websites.
Both concepts, not having Square One for my son and getting it illegally, are painful to me. I don't know what to do about it.
I loved Square One and Mathnet! Did they say why it wouldn't be available? I can't imagine that they don't think there's a market for it.

Of course, there is the amusing fact that the recent release of season one of Sesame Street on DVD carries a warning that it's not for children. Apparently children were a lot tougher back then.

December 2016

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