I am not a lawyer. No opinion I express in this blog has any basis in law other than what I understand, as a citizen, to be the laws of this land.

The fact that I feel compelled to make the above statement before I begin this article on the relationship between freedom of speech and author copyrights gives me pause. Why do I feel so fearful as I begin to express yet another “humble opinion”? It certainly is not because bloggers are so widely despised by professional journalists of all “political stripes.” I have no shame in that regard: the fact that no one pays me to write what I do is actually a source of pride. (So far, BTW, no one has even sent me a free copy of their book to review on this blog.)

And it certainly is not that this blog is notorious in any sense: if it were notorious I would start accepting paid ads and begin to make some money from it.

Broadsides

The first blogs in the English language were self-published, folio-sized pages called “broadsides” (in England). Broadsides were posted on walls and handed out to passersby on the streets from the time of the first printing presses in England. Most were political tirades. Many were “murder” pamphlets (yes, murder has fascinated the public since they invented printing presses).

Thomas Paines’ Common Sense, for example, was little more than a self-published broadside, but it ignited the fires of revolution. He wasn’t a professional journalist. He wasn’t a lawyer. He was a gadget inventor.

All broadsides were, in effect, published without a license, contract, or any legal permission from the British government. They were not officially sanctioned. All broadsides were in this sense “illegal.”

Imprimatur, Stationers Register, and Copyrights

I suspect few people these days know that until the U.S. Constitution, authors did not have the right to express themselves freely or to sell copies of their writings.

Back in the European Middle Ages long before the printing press, few people other than nobility and churchmen could read or write. Any literate person might write a text, but the text could only be copied and transferred by the writer or by his or her sanctioned scribe (mostly his, of course) to other people to read. That meant that only officially sanctioned texts could be circulated—only texts approved by the government and church.

After Gutenberg, though, both the rulers and the church recognized the potential for unauthorized, heretical, and “spurious” writings to be easily duplicated and circulated. In England, for instance, Henry VIII was terrified that a Calvinist might translate the Bible into English. He burned such upstart writers at the stake and required all publications in his kingdom to bear his royal “imprimatur” (that is, seal of approval).

Rather like modern unions, another powerful force in the old days was the guilds—professional associations that granted permission for certain individuals to engage in certain activities, such as masonry, glove-making, and printing. In 1407 the Worshipful Company of Stationers and Newspaper Makers (aka Stationers Company) was founded. Its purpose was to establish a government-sanctioned monopoly over everything printed (copied) in the country. The Stationers guild maintained a “register” or listing of all publications for which they had been paid a fee for a license—that is, a copyright.

By Shakespeare’s day, both the Catholic Church on the Continent and the British monarchs enforced heir imprimaturs on all publications. Of course, renegade printers still managed to crank out political broadsides, unauthorized religious tracts, and scandalous novels without any such imprimatur or “copyright.” And, of course, the Stationers continued to extract their fee for all sanctioned publications.

• Sidebar: Shakespeare actually paid a printer to publish his sonnets. The publisher bought the license to print and sell his sonnets from the Stationers Company. Shakespeare never received a penny for the sale of his sonnet cycle, which is undoubtedly the greatest volume of poetry ever written in English. (Yes, that’s right. Shakespeare was not only self-published, he was published by a “vanity press.”)

The point, of course, is that until the U. S. Constitution, licenses to publish were solely for the benefit of the authorities (church and state) and the printers who wanted to sell copies of texts—not for the authors.

The U. S. Constitution

Article I, Section 8 of the Constitution, grants the Congress the power:

“To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries….”

That’s “Article 1,” the first section of the Constitution. The Founding Fathers did not grant this power to the Executive or Judicial branches of the government. They granted this power to the people’s representatives. And they knew that the right to own one’s own writings and ideas was so fundamental to freedom that they specifically spelled this right out in the body of the Constitution. This is not an after-thought, like the amendments, which include the right to freedom of speech.

Ownership of expression is a more-fundamental right of U. S. citizens than even the right to freedom of speech.

What I Fear

Like everyone on the Internet, I struggle to protect my privacy and to balance that with my publication.

A writer by definition is someone who wants to “speak their mind” in public. Even poet Emily Dickinson whose hundreds of poems were not published in her lifetime wanted her poems to be published and wanted people to read them. She also developed agoraphobia and never left her parents’ home after her mid-twenties. Clearly Emily Dickinson craved privacy.

So, when I begin to suspect that people who I don’t want to possess my private information have acquired it, I worry. And when someone posts an obscene comment on this blog, or posts a threat, or tries to circumvent the blog’s security to post spam and use my blog as a sort of broadcast beacon for their own website, or when a spider bombards my blog in search of illegally republished and copyrighted images, or when a users browses to the blog with software designed to steal passwords, or when any single user repeatedly visits the site without subscribing and by directly hitting the root directory, I find myself becoming paranoid.

I also fear being black-balled by Google and other search engines, because of some opinion I express about a specific individual or business.

And I fear having my private email address sold to or otherwise provided to third parties, following my response to a public request for email communications. When a private email user communicates in confidence with other people through email, I feel it is a horrible breach of trust to disseminate that address. (I’m not referring to my professional email address, which is posted on my website and elsewhere.)

All of these things have happened to me. Each of these, it seems to me, is an attempt to intimidate me so that I will not exercise my right to free speech.

But they also relate to my ownership of the words I write.

What Does This Have to Do with Copyrights?

Ownership of one’s words is an absolute American right, in my opinion.  However, copyright legislation and other actions of the courts have mangled the Constitution so that now “printers” have total control over writers. In particular, “electronic” publishers have total control over freedom of speech in this country.

Let’s take Amazon as an example. (I use this example only because I fear Amazon far less than any other venue or publisher at this moment.)

Two nonfiction titles I published through a “legitimate” publisher are listed for sale on Amazon.com, even though they are technically “out of print” and even though the copyrights I granted to the publisher a decade ago have reverted to me. In other words, Amazon is stilling selling new copies of the book, and the bulk of the revenues go to my publisher, not to me. (Foolish me, I had thought that an out-of-print book was not the same thing as a back-list book.)

Amazon is also listing used copies for sale from a number of vendors. When Amazon sells a used copy, all the revenue goes to Amazon and to the used-book vendor. That’s fine with me. I’m pleased to think that someone still wants to read my books, and I am a great fan of used books myself. But the sale of a used book is not a violation of my copyrights. No new copies of the books are involved in used-book sales.

When my publisher recently sent me the original discs of the texts of my books so that I could do with them whatever I pleased, I set up an account as an Amazon Kindle publisher with the intention of publishing the two titles in electronic form. I actually sold a few Kindle copies—very, very few. For the privilege of using the Kindle “store” and platform, Amazon gave me a “royalty” of 35%. Now, I thought to myself that it was odd for Amazon to give me a “royalty” on property I was selling, as opposed to taking a “fee” or “commission” on the sales, but since 35% of something is worth more than 100% of nothing, I signed on the dotted line. I felt then, as I do now, that the use of the term “royalty” made Amazon a publisher, not a bookseller. And I wish they would change that term in their contract.

Then I learned that the ISBN numbers of the books are still owned by my former publisher, not by me. So I promptly took the books off the Kindle store website. In other words, I learned that my former publisher still has certain rights under the law to my books. And it all has to do—not with copyright law—but with a monopoly (think Stationers Register) that the U.S. government has granted to another publisher, Bowker. By law, Bowker has the exclusive right to issue ISBN numbers to books published in the U.S. If a publisher wants to sell a book through any venue other than its own website or bookstore, the publisher must buy an ISBN number for the title. All other venues and booksellers rely on the ISBN as a unique identifier of the title—for reasons that I’m sure are obvious.

In order to republish my books on Amazon Kindle I need to buy new ISBNs. And I was ready to do this when I learned about the Google Book Settlement. I examined the Google Book Settlement database and discovered that Google has scanned the hardcopies of my titles and has listed them as published by my former publisher. So, I promptly registered my claim as the author. However, after extensive communication with “my lawyers” at the Authors Guild I have been informed that I will only receive a 50-50 share of publishers’ revenues if the book is sold through Google Book Search. That’s right. My copyright. My books. Out of print. Even if I buy a new ISBN and republish the titles, my publisher will still be legally entitled to compete with me and to sell an out-of-date, inferior form of my words. I have no say in the matter. I cannot “retract my words” from the marketplace.

Back at Amazon, it turns out that Amazon not only can remove books from its virtual shelves at will—or if someone else makes copyright claims on them—and not only from its “store,” but also directly from the Kindle devices of people who have legally purchased them. Amazon says that it did this because they discovered that some of the ebooks they sold violated copyright laws. Since when is Amazon a judge on the federal bench to make this call?

Amazon also publishes books through its BookSurge and CreateSpace subsidiaries. However, even if you own a block of ISBNs, CreateSpace will not permit you to use your ISBNs—any more than BookSurge will. Both companies insist on being listed as “the publisher” for ISBN purposes—at the same time as labeling their customers as self-publishers. They pass the cost for the ISBN through to the authors (who do not own them), though, and not at a discount, either. So, why would Amazon insist on holding the ISBN but not the copyrights of a publisher? Well, because it is the ISBN that makes it possible to sell a book in the public marketplace. Without an ISBN, a book cannot be listed on Amazon or any other bookseller website. Without an ISBN, a book cannot be distributed nationwide in any way except by snail mail.

What Is a Copyright Worth These Days?

In my opinion, nothing. Copyright is a concept that evolved after it became relatively easy to duplicate a text. It was a right designed to protect the originator of the text from exploitation by duplicators. Now, with the advent of digital duplication and the Internet’s unlimited distribution capabilities, copyrights are under the control of a cabal comprising the Congress, the courts, and Internet-service providers.

Is there freedom of speech in a society in which there is literally no way to speak freely without the imprimatur of a publisher, printer, ISBN registry, or Internet-services provider?