23 May 2012

Naked Cavorts the Emperor

Fairly recently, Joe Konrath rightly railed against exploitation of writers, and in the course of it questioned

How did publishers universally agree that 25% of net was what authors should receive? Where did they get that number, and how did they all seem to adopt it at once? Isn't that a bit... odd? Even worse, why didn't anyone protest this obvious land grab? Where was the AAR? Where was the Authors['] Guild?

The Chinese protested exploitation by the railroad industry by striking. In Hollywood, writers have the WGA. In 2007-2008, the WGA writers went on strike. In fact, they'd been on strike several times before. The latest was to improve the dismal residuals they got for DVD sales, and compensation for new media. New media? Digital sales? Does this ring any bells for anyone? Why didn't anyone fight for us when this happened in our industry? Why didn't we fight for ourselves?

I've been thinking long and hard about that. When I look at other industries where workers were exploited, unions formed. Strikes occurred. Movements arose to defend the exploited. But that has never happened for book writers.

(paragraphing reformed for clarity; emphasis supplied) I've seen this, and similar, inquiries repeatedly over the years, both internally and externally to SFWA, MWA, RWA, SCBWI, a few other writers' groups, and the AAR.

The short answer is that legally, writers (and agents) are independent businesses. That is, writers are "management", providing a semifinished or finished piece of property to another firm. (Yeah, right. I know darned well the reality of how well writers "manage" anything.) And that means that writers can't be in a union, unless they are statutory employees creating works for hire, like in H'wood.1 In turn, that means that writers' organizations do not benefit from labor unions' exemption from antitrust law.2 Pirouetting farther around, that means that an organization of writers in the US that sought to change industry practices would be a "conspiracy or combination in restraint of trade," violating the Sherman Antitrust Act. In fact, the most-common use of the Sherman Act in its early days was union-busting, until Congress got around to declaring that unions were exempt!3 Thus, there's a legal basis for the idiocy of the Authors' Guild's litigation in the last decade, and the same goes for the AAR, and even the NWU (which probably does not qualify as a "union" for those not on staff at a periodical) — let alone trade groups like RWA, MWA, SFWA, etc.: They're legally prohibited from taking effective action other than lobbying. And because they're essentially powerless, a Certain Kind of Idiocy tends to rise to behind-the-scenes power in the organization, despite (and sometimes because of) the intentions — good, bad, or indifferent — of the elected officers.4

Then, too, for both institutional and other reasons, these kinds of trade associations have a strong tendency to alternate between "perceived as effective" and "perceived as prestigious" administrations... and that, in turn, tends to drive anyone who is actually likely to reform both process and policy at the same time away. For example, Scott Turow (the current president of the Authors' Guild) has pushed through a lot of tweaking to rather subtly improve process within the Authors' Guild... but he doesn't have a very firm grasp of policy (and his grasp of policy is infected by the predispositions of his Chicago megalawfirm, but that's a peculiarity you won't see too often). Similarly, SFWA is going through a very-process-heavy transition at the moment, meaning that a lot of policy issues are getting late (or, at least, perceived as late) attention.

None of this means that we can excuse the Authors' Guild for its institutional arrogance and errors over e-books, e-rights, piracy, or anything else. It only means that, by understanding where things are coming from, we're in a better position to point out the self-appointed-Emperor's lack of discernable clothes, let alone fashion sense. Then we get to argue over who, exactly, gets to be the Emperor cavorting so nakedly in the park... or on the internet. Of late, it's been rather amusing (to someone with as sick a sense of humor as I have) to see the naked commercial publishers and media conglomerates, the naked oligopolistic distributors, and the naked trade groups each accusing the others of being naked while ignoring their own exposed skin (and cellulite... it ain't pretty, and it sure ain't porn — let alone erotica).

  1. This results from a combination of grandfathering of the writers' unions in past some of the strictest requirements of the law for who constitutes an employee and the weird, US-unique copyright concept of work for hire. The US is the only significant "adherent" of the Berne Convention that statutorily redefines "author," in some circumstances, to mean "patron." See 17 U.S.C. § 201(b). It's an interesting commentary that we end up with Transformers 2, given that our copyright law vests copyright of a film in the producer, and the rest of the world at about the same time ends up with District 9 (for a lot less money), given that almost everybody else vests copyright of a film in the director, the screenwriter, or some combination of them — that is, the actual source of the creative expression seen on screen.

    The US has a long history of restricting who may properly form a union. Many of the recent battles have been in health care and in government service, and often boil down — at least on the page — to whether the prospective union member is a "policy-making" person, even more than any ownership interest or supervisory role. Although many of these battles are interesting to nerds like me (and, particularly, to nerds like me who have extensive experience as, and supervising, "middle management" in the Pentagon bureaucracy), freelance authors/artists/etc. are so far away from the boundary that it doesn't matter exactly where that boundary is. Under existing US doctrine, freelance creative folk cannot unionize, except into the grandfathered film/TV organizations when they are creating works for hire.

  2. Compare the Sherman Antitrust Act, 15 U.S.C. § 1 (1890) ("Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.") with the Clayton Antitrust Act, 15 U.S.C. § 17 (1914) (exempting labor unions from federal antitrust law, including both the Clayton and Sherman Acts) and Connell Construction Co. v. Plumbers & Steamfitters, 421 U.S. 616 (1975) (prohibiting use of state antitrust laws against recognized unions). This has significant limits, though, defined by the concept of "bargaining units." See, e.g., Mine Workers v. Pennington, 381 U.S. 657 (1965) (prohibiting a union from establishing industry-wide standards outside of its recognized bargaining unit — and without specific, formal collective bargaining — without antitrust scrutiny).
  3. See, e.g.,, In re Debs, 158 U.S. 564 (1895) (relying upon the Sherman Act in validating government's pro-employer response to railway worker sympathy strike); see also note 2 above. And when legal action didn't suffice, violence was never far off — even after the legal foundation for that response had been shattered. See, e.g., "Matewan: Bloody Showdown on the Road to Union Rights" (first pub. 2010).

    It's more than a bit ironic that the predecessor of the AAR got smacked — hard, and deservedly — for antitrust violations, resulting eventually in its demise. Unfortunately, it's very difficult to find the consent decree online (my copy isn't even scannable). That history goes a long way toward explaining the... nonproactive approach of the AAR.

  4. This is an organizational-dynamics problem, and it's far from restricted to unions and other labor organizations... despite the history of "organized crime" influence that led to the LaGuardia Act and Jimmy Hoffa. One of the best, and most obvious, examples of this problem was the initial response of the recorded music industry to the internet.