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Part 1 (21 Feb 2010)
The Essay Form

Turning away from the Copyright Act for a moment, it becomes substantially clearer what we mean by "package" by looking at the commercial reality of publishing. As an example, Tad Williams's doorstop novel¹¹ To Green Angel Tower (New York: DAW, 1993) illustrates the package problem rather clearly. A quick look at the entries at Powell's discloses:

• A casebound edition, used, for the bargain price of $7.95 (original price on publication was either $25 from the publisher or $12.95 from the Science Fiction Book Club; this edition is no longer in print) — 1104 pages
• A trade paper edition, used (2005), for $12.95 (original price on publication was $16.95, now $18.95) — 1104 pages
• A mass-market paperback edition (1994), divided into two volumes; volume I, used for $4.50 (original price on publication was $5.99, now $8.98), and volume II, used for $4.95 (original price on publication was $5.99, now $8.98) — total of 816 + 816 = 1632 pages
• An Adobe electronic edition, divided into two volumes; volume I for $7.98, and volume II for $7.98 — total of 816 + 816 = 1632 pages, or 49 + 32 = 81mb

And that's just the U.S. editions... and neglects the real problem: That To Green Angel Tower is not a stand-alone novel, or even the third book in a trilogy that can be read on its own, but the third publishing increment of a single work — Memory, Sorrow, and Thorn. It's also quite enlightening to look at the choice for the basis of an electronic edition, which chops up the novel into the mass market paperback form and pagination, rather than the trade paperback form and pagination. There might be a good production reason for dividing the mass market edition into two subvolumes¹² — but that reasoning simply does not apply to e-books.

This really is about packaging. I chose Williams' novel because there is an unusual degree of fidelity — if you want to call it that — among the editions that I've personally examined over the years. Even though the mass-market paperback had to be reflowed for production, it maintains many of the same typographical and production errors that appear in the casebound edition (such as doubled commas), and contains no "new and improved author afterword" or anything like that. Although I've not put my grubby little fins on the electronic edition or the trade paperback edition for long enough to look, I strongly suspect the same — if only due to page-count identity, which is awfully hard to maintain for a book that long if one is doing actual changes and corrections between editions.

But the copyrightable expression is identical. As a Gedankenexperiment, let's put the copyrightable expression of To Green Angel Tower into Schrödinger's box.¹³ When the photon gets emitted, the copyrightable expression gets divided into either one volume, or two; on paper, or as electronic files; maybe even an audiobook edition or Braille edition. Now, without opening the box:

• How many dead trees are involved?
• How much does it cost Joe Consumer to purchase a new copy at list price?
• Most difficult of all, if the book had been scanned and placed online — whether by Google or by some kid in his parents' garage — which edition has been infringed, and what does that mean for measuring damages if statutory damages are not available?¹⁴

Now imagine that perhaps — just perhaps — this was a reissue of a work that had been published, then went out of print, had the rights revert to the author, and then got reprinted by a different publisher just in time for the author's next novel to win the National Book Award.¹⁵

One other variable that goes into the packaging problem comes from the timing/pricing/returns problem endemic in the Western and Japanese publishing industry today.¹⁶ Although there are huge variations, a trade book-length widget typically comes out on date x for approximately price y in a casebound edition, followed on approximately x+360 by a mass market paperback edition priced at approximately 0.3y; there may be a trade paper edition, too, priced at approximately 0.7y in that mass-market paperback time slot, pushing the mass market paperback edition back about 300 days. On average. With huge variations. Further complicating efforts to determine real pricing, casebound and trade paperback editions are (ordinarily) fully returnable — that is, what you see in the store is not owned by the store, but is on consignment at the store, and is still owned by the publisher. For the purposes of this discussion, though, keep in mind that it is rare — not unheard of, by any means, but rare — for the copyrightable expression to be altered between any of those editions in any but the most minor ways. Thus, we don't pay for the words; we pay for the package in which we obtain those words.

To say the least, John Locke never imagined this potential problem when he worked toward what became the Statute of Anne.¹⁷ Similarly, the drafters of the Berne Convention, the US Copyright Act, and the various copyright-related WIPO treaties didn't consider it either. Next time, we'll start to see the real price being paid for that failure of imagination.

11. This is most emphatically not a judgment of the book's merit from either a literary or a fanboy perspective. It's actually quite a good book, and integrates its thematic material much more deeply into the plot, the characters, and the prose than almost anything else from that imprint in the early 1990s. It is, instead, a description of its sheer heft.
12. Or maybe not; the layout and production quality of the mass market paperback editions somehow manages to combine wasteful and execreble. That's not a smackdown of all mass market paperbacks, by any means; William Gaddis's longer-by-wordcount unappreciated masterpiece The Recognitions clocks in under 1000 pages and yet is (physically, anyway!) more readable. It's not even a smackdown of all DAW, or all Penguin USA, mass market paperbacks.
13. The cat is, in fact, dead already, because we've already done this experiment — so long ago that the cat died, and it doesn't really matter whether or not it was in the box when it did so. All of this points out a critical error in Schrödinger's frame: It does not control for time elapsed between the event and observation of the event's effects.
14. In this particular instance, they would be, as the casebound edition was registered... albeit not timely (see No. TX0003857430). Like I said — Gedankenexperiment. Of course, this also brings up the question of whether Mr Williams might have a claim against DAW... and any professors out there perusing this have my gleeful permission to include precisely such a fact pattern on their exams. It brings up further questions regarding other registration problems, too...
15. This is not a hypothetical; see the work listed in note 12 supra for one example.
16. I simply don't have enough data to make either a similar or a dissimilar inference for China and other emerging print-publishing markets, or even for established print-publishing markets like Latin America. There's even more chaos than one usually finds in publishing!
17. Happy 300th birthday in about six weeks! See 8 Anne, ch. 19 (10 Apr 1710).

Labels: copyright, intellectual property, internet, jurisprudence, publishing