Book Biz News 7-1-2024
AI, Snarky Agent, Book Bans, and... AI
The Looming Threat of AI in Book Publishing
Op/Ed by Sabriga Turgon, CG
AI’s boundaries of use and attribution in the literary world are still blurry.
Every author, whether their work is nonfiction or fiction, is a creator, and every creator generates art that moves them and hence, their readers. Until the advent of AI, that creative process was a purely human adventure that took place over time and experiences.
Authorship often requires research into those experiences. But how much can authors rely on AI search results that may unknowingly plagiarize another creator’s concepts or expression? Without citing the source material used to train AI, its accuracy or neutrality will always be in question.
AI-generated content has clear patterns and trends based on current data. As authors increasingly rely on AI’s search results, it’s easy to anticipate the very human tendency toward seeking an easy solution. Search results that seem neutral can be rife with personal slants AI cannot detect or care about.
Which brings us to the longer impact on book publishing. AI’s increasing influence in publishing opens the door to a new world that could easily (if it hasn’t already) birth an ancillary legal specialty only looking for ways to challenge an author’s authenticity. Challenge the author’s authenticity and the blame then shifts to the publisher for not doing due diligence with AI-generated content that overstepped copyrights. Or such content, when not well-curated, could spread misleading information based on cultural insensitivities or individual biases.
Imagine a future only seven or ten years away where those biased notions have been inculcated more deeply, more insidiously. Their effects on national unity, understanding, and compassion will deteriorate, promoting conflict, division, and fear that only undermine a culture’s stability.
Over-reliance on AI could stifle diversity in publishing as more and more authors conform to the latest desirable commercial expression. AI analytic platforms like Bookstat, for example, provide publishers with real-time sales data and market trends and aid strategic decision-making. Simple stats are a perfect use of AI. But when publishers increasingly rely on profits from books largely informed by AI, marginalized voices and perspectives will quickly be lost—not to mention the dumbing-down of acceptable expression.
Such conformity not only promotes a lack of innovation and diversity, it can leave publishers open to the aforementioned legal threats to their operations and intellectual property. As AI advances, it’s sure to cost increasingly more, creating a cultural or economic division that forces the voices of writers with limited monetary resources out of the social (profitable) conversation. The impact will take time but will inevitably rebound on publishers through criticism for if not promoting, then exacerbating cultural inequities and opportunities. Given a great enough impact, publishers may see their profit margins decline due to product boycotts resulting from rising social criticism.
Hang Your Head in Shame, Sister
KT Literary agent Hilary Harwell was fired for doing what every writer fears the most: trying to steal their idea. On June 23 she posted, "Just read a query that was essentially THE ROAD meets DELIVERANCE (#YA) and now I want someone to write this for me please."
Although she deleted the post and, theoretically, her account, the social-media blowback to receiving a query and then publicly requesting a different author write the premise was justifiably swift and sharp. "With respect,” wrote author Jamie Damato, “do you not see how it's actually kind of insidious for an agent with industry influence to reject a querying writer with no power and then try to get someone ELSE to write THEIR concept but 'better' just because they didn't use those specific comps?"
Curtis Brown UK’s Jonny Geller posted, "I heard this week that an agent used an idea from a submission to solicit writers. I don’t know the specifics of this case, but I want to reassure anyone who bravely submits their work to any reputable agent this is NOT ok & an abuse of sacred trust."
KT Literary, thank heaven, underscored that sentiment with their own post: "We at KT Literary have decided to part ways with an agent whose recent public statements directly contradict our values and the trust we work to build with our clients. We are reaching out to affected clients to discuss their representation options and ensure continued support. Thank you for your patience and understanding."
Harwell made her apologies directly to Publishers Lunch: "I deeply regret the post I made on X/Twitter. I had read a query that, for context, had a sibling recovery plot and included no comparison titles...I understand how my post came across. It was hurtful to aspiring authors and potential/existing clients of my former agency, my former colleagues, and to the author of the submission. I am also so deeply sorry to my clients, who I consider family, and who are now thrust into upheaval because of what I said. I wish everything could have been handled in a more careful, nuanced way, but I accept full responsibility."
Authors Against Book Bans
A coalition of 1,500 authors, illustrators, audiobook narrators, and translators have launched Authors Against Book Bans (AABB) to combat book bans and challenges all over the US.
Partnering with local organizations already working on this issue, AABB’s goal is to create a framework for grassroots organizing, legislative advocacy, support for teachers and librarians, and more.
Member authors such as Elizabeth Acevedo, Judy Blume, Alexander Chee, Dhonielle Clayton, Oghenechovwe Ekpeki, Lev Grossman, Daniel Handler, Maia Kobabe, Emily St. John Mandel, Julia Quinn, V.E. Schwab, Kate Spencer, Emma Straub, Raina Telgemeier, among others, will tackle the issue directly. They will “attend school-board meetings, meet with state, local, and national legislators, and advocate for people fighting to access books and materials wherever challenges occur."
"We know that book bans are rising exponentially across the country,” says AABB member Maggie Tokuda-Hall. “From Idaho and Utah to California and New York City, challenges are specifically targeting BIPOC and LGBTQ+ authors. The censorship of these books sends a devastating and unacceptable message to members of these communities. Every reader deserves to see themselves and their families in the books in schools and libraries."
Internet Archive Claims Its “Controlled Digital Lending” Doesn’t Infringe Copyright
Internet Archive, a nonprofit digital library, wants the internet to be free and open, so it gives anyone access to its ever-growing collection of digitalized materials—including websites, software applications, music, audiovisual, and print materials.
Surprise, surprise, someone took exception to that “sure, you created it, but the public has a right to it all” stance, and District Court Judge Kohn Koeltl agreed: "no case or legal principle supports that notion. Every authority points the other direction…. IA’s eBooks merely replace those authorized by the Publishers."
So naturally, Internet Archive appealed, landing the case in front of the Second Circuit Court of Appeals in New York, which heard arguments last week. After the court noted there’s more “friction” in lending a physical book than an eBook, and that eBooks a different market. IA’s attorney, Joe Gratz, insisted, “The flip side of friction is added utility and convenience." Citing the Court’s decisions in a Sony case about copying broadcast media to watch later, he added, "It's good if we are increasing efficiency and reducing friction."
But Appeals Court Judge Steven Menashi asked a key question upfront: "Didn’t we say in Google Books that just converting a book into digital form is not transformative?... Didn’t we say that that just converting a book into a more convenient form is not transformative?"
One defense weakness was its IA’s informal "five-year rule," i.e., they don’t lend eBooks until five years after a book is published, since that’s when the bulk of its sales occur. "Isn't that a recognition or an admission that you recognize that there is value in the electronic version of books, and that you would not lend them without paying and that that would be an impact on the market?" the Court asked. "You do acknowledge that copying the books and creating a digital format of the book and then lending it would have an impact on sales?"
The rule is only in effect as a "prophylactic" for publishers’ concerns, Gratz said—which, when broken down, means the rule is merely meant to placate publishers, not protect their properties. Doubling down, he claimed that even if IA did include recent books in their Controlled Digital Lending (CDL) program, it would still be fair use because they don’t think that lending would have an effect on sales.
But the Court noted, "Those libraries purchase those eBook licenses, correct? I think that’s the difference here. You didn’t buy this."
The publishers' case, presented by Liz McNamara, emphasized that IA pitched itself to libraries as a way to not buy the same book again—rather than pay for an eBook license, lend a digital copy through an IA partnership.
"This offers them another way of using the right they already have to lend it to one patron at a time, in exactly the same way that the VCR and Sony allowed the person to access the material later instead of right now," Gratz said.
One Judge referenced the ReDigi case, in which the same Court "said this isn't transformative. This just provides a market for resale of digital files, which is kind of what you're saying is this provides a way to utilize the physical books, one at a time that otherwise might be sitting on a shelf, by making them available one at a time to anybody, anywhere in the country and the world, who wants them."
"That is exactly why what we are doing is simply lending out the physical object by different means,” argued Gratz, “whereas what was going on in ReDigi was far more sort of ethereal, which led to the court saying, You know what? This is actually just a download site."
But the Judge noted, "Of course, it wasn't just a download site because it forced the transferor of the digital file to sever their access to that file, and purportedly ensured that they wouldn't be able to ever use it again."
"What's important, I think,” Gratz responded, “is the ReDigi case itself acknowledges that using technology to make delivery more efficient is a justification. In that case, it was not a sufficient justification because of commerciality, because of a lot of other issues that are not present here."
Oops. Let’s hark back to Judge Koeltl, who ruled on the ReDigi case as well. He’d ruled that any changes to the first sale doctrine to apply to digital goods "should come from Congress and not from the Courts."
Gratz stood firm despite all efforts to nudge his needle with questions like: "I'm trying to understand where, where does it end? Where's the slippery slope? Because, you know, you may be saying that today and tomorrow, come in and say, well, but now we found another use, which, you know, the one-to-one doesn't really, we're not limited to the one-to-one lending under CDL."
"This is why it is so important that Courts consider fair use. And Congress have instructed courts to consider fair use on a case-by-case basis…. I don't think that's a stew that would be fair use." Libraries that use CDL, he claimed, are just doing what libraries historically do.
But Judge Menashi said, "You keep saying we're doing exactly what libraries are doing, but actually it's a totally different legal framework. There's a first sale doctrine for the physical copies, and then what you want to do is based on the fair use factors, which is a different section of the statute and different legal tests. We don't actually know if, in the absence of the first sale doctrine, whether a library would meet the fair use factors."
During rebuttal, the Judge also said, "You've been saying, all we're doing is exactly what a library would be doing. But actually, a physical library cannot make a physical copy of a book and circulate it in place of the original copy. It can't do that, right? So if it can't do that, then you're not doing just what a library is doing. So your argument actually depends on the digital copy being transformative and the physical copy not being transformative. And that's the thing that makes the difference, not the one-to-one ratio and the analogy to physical books?"
Another Judge said plainly: "The struggle I'm having with your response to these questions is, on the one hand, you want to say, look, this is transformative, because it's efficient, and we can get people to read more books faster. They don't have to go to libraries. The efficiency is, what is the value of this to the public, but at the same time you're saying, but that efficiency has absolutely no impact on whether the publishers can sell the eBooks or the hard copies. And you know, it sounds wonderful when you're saying it, but when I step back and listen, I'm having trouble reconciling those two."
That same Judge noted that the IA's pitch to libraries was different than its justification to the Court.
Help me understand how I can reconcile two statements that you've made on the record. One is, even if 9,000 libraries joined the Open Libraries project, there would be no impact on the ebook market for the publishers. That's your position.
Yet, when it came to the rule 56.1 statement, there was evidence submitted that you did not dispute that when pitching to libraries to join the open libraries project, your CEO said, you want to do this because you don't want to have to buy it again. You can have your patrons access all of these books free of cost. We can share catalogs.
How do you jive those two? If your pitch to libraries is join us and you get all these books for free, how does that reconcile with, hey, but we're going to have no impact on the ebook market."
Gratz claimed the critical difference was that licensed eBooks from Overdrive don't require ownership of the physical book. But when McNamara addressed the same point later, she noted, "It's very rare in a record that you have actual admitted evidence that shows a party is intended to supplant your market…. [while the IA] tries to dismiss this as rhetorical flourishes, these pitches were made to hundreds of libraries. There is only one way to read that: Join Open Libraries and...you do not have to pay the going price of the license fee."
In her short opening statement, McNamara asked "to really focus on the practical realities of what Internet Archive is doing and what is before this Court. Internet Archive is asking this court to disregard the controlling law of this court as well as the Supreme Court, and what it is seeking is a radical change in the law that, If accepted, would destabilize the digital economy, not just for books, but for movies, for music, for TV and the like. Without license or payment, Internet Archive is making a complete, exact digital copy of the publishers’ print books and distributing them around the world so that they can be read—the exact same purpose for which the publishers are publishing these works."
Later, she said even if the IA is deemed a nonprofit—a claim she feels is arguable—CDL is still not fair use.
This Court and Warhol in analyzing the fourth factor said that there is a usurpation of the market when the infringer's target audience and the nature of the work are the same," she said. "That is precisely the situation here.
The Supreme Court and Harper and Row made clear that every copyright infringer can make an argument that they're expanding access to a work and that is not sufficient to change the equation."
IA's brief and [amicus] try to create the impression that the public interest is on their side, and it is not. The protection of copyright is in the US Constitution and federal law because it creates an incentive for writers and artists to create new works to benefit our broader society. Internet Archive’s controlled digital lending is in direct conflict with that basic principle.
The Court appeared to agree with the publishers that the market for digitally copied books and eBooks is the same. "The common-sense inference that these digitized books are competing in some sense in an existing market or in a potential market is very strong. I think the Court recognizes that."
Still, the Court must decide if CDL is a necessary public resource. It also pushed back on the idea that people would actually stop writing books because of CDL.
The Association of American Publishers commented, "We thought it was a strong day in Court, and we look forward to the opinion."
Speaking on behalf of writers everywhere: Don’t we all!
Speaking of Your Book…
I hope you found last week’s tool useful. Here are the theories, tools, skill sets, and other materials we’ll be sharing in future newsletters. Let us know in the comments which one(s) you’re interested in.
Click here for one-on-one help with any Secrets of a Ghostwriter tutorial.
Click here to schedule a workshop for your writer, editor, or ghostwriter group
.