A Paradox—and Cautionary Tale—for Civil War Authors

This is the very definition of a paradox.

For years, I have been a very regular user of the Internet Archive, archive.org. It has an incredible collection of digitized resources that I used to have to go to libraries to get, or I had to hire researchers to obtain those items for me. These items are often rare because they’re old and were just not generally available without a lot of trouble and expense. Now, with the Internet Archive, those materials are available at my fingertips. I can browse. I can search. I can print things out. I can download them to my computer. For public domain materials that are the lifeblood of my research and writing, the Internet Archive is absolutely indispensable, and there are times when I use it multiple times per week–sometimes, multiple times per day.

But it also has a terrible downside.

The other day, after I realized that I hadn’t done so in a while, I searched my name on the Internet Archive, and there were eleven different versions of my copyrighted works there in full form, available to anyone who wanted to use them, with absolutely no compensation to me as the creator. The works available included my Buford at Gettysburg book, One Continuous Fight, Plenty of Blame to Go Around, TWO different versions of Little Phil, and my Trevilian Station book. Anyone could “borrow” them through this nonsensical fiction that they have set up that allows people to obtain my intellectual property for absolutely nothing. I have never once agreed to have my intellectual property given away for free, and I most assuredly have never authorized the Internet Archive to offer my intellectual property to the world for free.

The truth is that, except for extremely rare instances, books about the Civil War sell in small quantities. The most I’ve ever sold of one of my books–over a period of 15 years–is about 15,000 copies. Most sell less than 2500 copies. It’s a good thing that this is not how I make my living, because if it was, we’d be living in a cardboard box under an overpass somewhere.

I don’t do this to get rich–I do it to scratch my teaching itch and because researching and writing about it is how I really learn a subject. At the same time, I spend a lot of money researching these books, sometimes paying for the right to use copyrighted images, and to have maps drawn. These things cost money–it’s not unusual for me to spend more than $5000 to get a book ready to go to the publisher. I don’t get paid advances for my work. I recoup the money that I spend through sales of the books–either those I sell myself, or from royalties generated by sales by others. If I buy books to sell myself, I typically have to pay somewhere between 50-60% of the retail price to buy them, meaning that I make about 40% of the sale price as profit. For a typical softcover book that sells for $19.95, that means that I make about $8.00 per book. If I’m relying on royalties, I get 10% of the sales to others. If it’s a collaboration with a friend, like my works with Dave Powell or Scott Mingus, I get 5%, as does my co-author. And those royalties are often paid once per year, at the end of the year.

In short, it often takes a lot of sales for me to simply break even on these projects. Breaking even is my goal for pretty much every book that I research and write; if I make a profit, that’s dandy and it makes Susan happy. But, in the end, I’m hoping for a net zero. Sometimes, I get there. Sometimes, I don’t.

So, having my work available to the world for free WITHOUT my permission is incredibly offensive to me, and I hope you can now see why. It royally pisses me off, and when I saw 11 of my books available for free on the Internet Archive the other day, I just about blew a gasket.

Under copyright law, I have the right to demand that the infringing material be removed, and I did so. I gave them 48 hours to remove the material, or I told them that I would file suit for copyright infringement. And I meant it. The statutory penalty for intentional copyright infringement is up to $150,000 per instance of intentional infringement, plus attorney’s fees. With 11 of my books available, the potential damages were massive, and I reminded them of that. Less than 48 hours later, they were all removed.

Sadly, this is about the fourth time I’ve had to do this with the Internet Archive. They gleefully intentionally infringe for as long as they can get away with it. Once you call them on it, they will remove the material, but the burden is on authors to police their copyrights. My advice to all of my author friends is to regularly check to see whether your work is being infringed there. If it is, demand that they remove the infringing material, and if you need help drafting that demand, ask me, and I will gladly assist you in drafting the demand. If they fail to remove it, be prepared to sue to enforce your intellectual property rights.

So, to bring this back to the beginning of this long-winded rant, I have nothing but terribly mixed feelings about the Internet Archive. As a repository of public domain material, it’s absolutely invaluable and a true motherlode of materials that just aren’t available anywhere else, and, for that reason, it’s a real treasure trove for those who research and write. The irony of my extensive use of it for those purposes is not lost on me.

But, at the same time, they’re a bunch of intentional infringers of copyright rights without the slightest bit of guilt or remorse, and you have to police the website regularly to protect your copyrighted material, as the onus is on us authors to do so. Shame on me for letting it go long enough for 11 of my titles to appear there. That won’t happen again.

Fellow authors, let this be a cautionary tale for you. And for those of you who are consumers of what we produce, PLEASE don’t abet their infringements by participating in the ripping off of our hard work.

10 Responses to A Paradox—and Cautionary Tale—for Civil War Authors

  1. This can also be applied to fiction books AND audiobooks. I know pretty much half of my works have been pirated somewhere on the web. You can even find the full audiobooks on YouTube, but they changed the audio just enough for it to not be exactly the same as the one that’s for sale elsewhere. I honestly stopped looking years ago because it was just depressing.

  2. Thank you for that eye opening peek behind the curtains. I am adding “One Continuous Fight” to my Xmas list in support. I’ve travelled both of Lee’s retreat paths from Gettysburg to Williamsport and look forward to the reading.

    Asidely speaking, I know of an author who had a high 5-figure advance on a book he hadn’t written. Sound like good money? His agent got half off the top. Then it took him time to write. Based on the time involved and the amount of the advance he received, he estimated his hourly wage at something like $1 – $2. Book reviewers would get a free copy, do their review (you would hope), then sell their free copy on eBay pocketing the proceeds, one less sale for the author, times X amount of book reviewers, thank you very much. Then when he was doing book signings, if the next buyer in line said his name was Jon and the author inscribed, “To John,” guess who had to pay for a book. I just checked, his works are not on archive.org.

  3. I wasn’t aware of this. I have only used it for older books for research. I thought the writer had more control with copyrights. I haven’t even considered it for books that are currently being sold.

  4. I appreciate your unhappiness. For disclosure, my meager efforts are published under the General Public License or Creative Commons license, depending on content. But I think it is worth keeping in view that copyright originated as a government-issued monopoly from the Crown to the Royal Stationers, a publisher trade group. When that monopoly came up for re-authorization, there was contention and the verbiage added about “authors”, though in reality authors didn’t really have a seat at the table. The Statute of Anne that resulted was lifted pretty much intact to our constitutional congressional power.

    I think people might be more sympathetic if the original copyright terms of 7 years plus 7 year extension were kept in place. The current “life plus 70 years” seems a bit one-sided, as well as some provisions as regards public performance and anti-circumvention stuff added by DCMA. Granted, my concerns are more about copyright in computer programs, not books, but certainly in this day of e-books the two converge. This also gets into areas such as “right to repair”, first sale doctrine, etc.

  5. I have used Project Gutenberg (who does respect copy rights) and the Internet Archive to find and read old Civil War books no longer copy righted that I would never be able to afford to buy. At first I thought the borrowing was through libraries, who do purchase the books, but discovered it’s not, so I won’t borrow books from Internet Archive. Being a very experienced tech person I’ve had a few email exchanges with Internet Archive regarding their search engine parameters and feel they’re arrogant and think they’re smarter than everyone else. Having spent many years working at a library and talking with local authors, I understand and appreciate all the authors go through. I’ve always felt the authors, who do all the hard work researching and writing, should get a bigger cut.

  6. I am not an author, but a consumer of Civil War books, the proud and happy owner of many of Eric’s wide-ranging books. I found this post most interesting for the entirely new perspective on the market for Civil War books. I would think Eric is on the “top” of the charts because he writes so well( I too am a lawyer), uses the words of the soldiers themselves, researches appropriately, and covers entertaining topics.

  7. But how is it different from his book being available in a public library?? Once a library purchases your book, they don’t ask your “permission” to put it into circulation. So if a researcher uses an author’s work on loan from a physical library, and gives proper credit and acknowledgment in his footnotes and bibliography, is that a problem as well?

    Isn’t it understood that if you use material from the Internet Archive that you acknowledge in the same fashion as you would do in a conventional library setting? But in neither instance are you obliged to BUY the book.

    I have never used the Internet Archive but my understanding from their mission statement is that their purpose is pretty benign: just making info in the public domain available to a wider audience and people not in close physical proximity to an academic library. I am assuming that somewhere they say you have to acknowledge sources.

    If this concern is legitimate, I think it would be that the Internet Archive should be requesting his permission before they digitize his work. Yet still, once academic libraries go digital, I don’t believe they ask authors for permission. They just see that as a new institutional method of cataloging.

  8. A handful of giant corporations control our copyright law, and they have no real opposition because there is no advocate for the rights of the general public. Disney, for instance, wants to not have to give up anything to the public—ever. They’ve even changed the law to make copyright last for 70 years AFTER death, a complete change from the original intent.
    And you know what Disney will do after those 70 years pass? They’ll just pay politicians to change the law again and extend it even more! What group will have the clout to oppose them and protect the public interest??
    These companies own all kinds of intellectual material. Therefore, they hate the very idea of “public domain” and are successfully eliminating it.

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