Internet Book Piracy

The Fight to Protect Authors, Publishers, and Our Culture

Gini Graham Scott

• Publisher: Allworth
• Year: 2016
• ISBN:
  9781621534952
• Topic: Law
• Subtopic: Copyright Law
• Index: Law

The international battle against Internet pirates has been heating up. Increasingly law enforcement is paying attention to book piracy as ebook publishing gains an ever-larger market share. With this threat to their health and even survival, publishers and authors must act much like the music, film, and software giants that have waged war against pirates for the past two decades. Now, The Battle against Internet Piracy opens a discussion on what happens to the victims of piracy. Drawing from a large number of interviews—from writers, self-publishers, mainstream publishers, researchers, students, admitted pirates, free speech advocates, attorneys, and local and international law enforcement officials—the text speaks to such issues as: •Why pirates have acted and how they feel about it
•The conflict over constitutional rights and piracy
•The current laws surrounding Internet piracy
•Examples of cases taken against some pirates
•Alternatives to piracy
•Personal experiences of being ripped off
•The ways piracy affects different industries and how they've respondedAuthor Gini Graham Scott prepares readers to arm themselves against these modern perils by learning about copyright, infringement, and how to prevent, combat, and end book piracy.Allworth Press, an imprint of Skyhorse Publishing, publishes a broad range of books on the visual and performing arts, with emphasis on the business of art. Our titles cover subjects such as graphic design, theater, branding, fine art, photography, interior design, writing, acting, film, how to start careers, business and legal forms, business practices, and more. While we don't aspire to publish a New York Times bestseller or a national bestseller, we are deeply committed to quality books that help creative professionals succeed and thrive. We often publish in areas overlooked by other publishers and welcome the author whose expertise can help our audience of readers.

PART I

The Interviews

CHAPTER 1

Introduction to the Interviews

WHEN I FIRST BEGAN CONDUCTING the interviews with a mix of writers, publishers, lawyers, “pirates,” and others involved in the piracy issue for the documentary The Battle Against Internet Book Piracy, I thought it was a straightforward matter of victims versus pirates, with some help for the victims from law enforcement and lawyers. The goal, I thought, was to help the victims of book piracy, myself included, find the sites where books were pirated, and then seek to get the books removed and possibly get some compensation for the infringement, or interest law enforcement in going after the biggest infringers.

But as I spoke to the interviewees, my own publishers, and others interested in this issue, it became far more complicated. For one thing, most writers and publishers had a kind of fatalistic “there’s not much I can do” attitude. This was largely true, since about the most anyone could or did do was send out takedown notices to the infringers, and then if they didn’t respond, to the website hosts and domain name servers, who did respond by removing the offending domain. However, often this was only a temporary solution, since the pirate would simply put up another site under another name, and it was back in business as usual. And making matters worse, further research on where one’s books were pirated commonly revealed the book available through dozens if not hundreds of sites. So it was truly a “whack-a-mole” situation. Paying lawyers was too expensive for most writers and publishers, and law enforcement efforts against pirates were largely directed at the film, music, and software pirates, where the levels of piracy and the resources of the large companies that were victimized were much greater, and these companies were part of large industry organizations that helped in the battle. But by their very nature, writers and publishers were much smaller and less organized, so were more readily victimized with little consequence. At the same time, some of the “pirates” I spoke to didn’t consider themselves pirates. This was because they were unaware that the material they received or shared freely was pirated by someone else, or they felt justified sharing it in the case of students because they thought the large companies were charging far too much for the required books often written by their professors and used in their classes. And then some interviews made an argument for free speech, changing the old model of selling books for something new, such as subscription services, or for finding ways to use what the pirates were doing to help promote one’s own books or sell other material.

The following interviews reflect this range of viewpoints, and apart from my occasional commentary, I have chosen to let them speak in their own words. Then, the next section will discuss the even greater threat of piracy today, which is so vast that it threatens to undermine the very foundations of society. Such a threat is illustrated by the Sony hacking, which not only stole intellectual property but company data and personal records, much of which has been leaked to the media, as well as provided the fuel for the identity theft of everyone whose data is in the system. So the threat to books, along with films, music, software, and other intellectual property, is just the beginning.

These interviews help to illustrate the concerns and issues from the personal viewpoint of the major players in this struggle today. While these are single voices, their comments reflect similar experiences and viewpoints of others who are also victims, pirates, or others involved in this issue.

CHAPTER 2

An Interview with an Intellectual Property Lawyer

THE FOLLOWING INTERVIEW IS WITH Sandra Shepard, an intellectual property attorney based in San Rafael, California, who has been working in this field for about twenty years. She has been involved with licensing and working on Internet issues since 1988, and has sought to help her clients adapt to the way the technology has changed and has been used in different ways. As she describes it, she works with her clients as a strategist to help them monetize their intellectual property and avoid having their work pirated. She helps them take advantage of the situation when their work is pirated, and not become pirates themselves, such as by using the lines of a poem in the beginning of a chapter of their book, thinking it is just fair use when it is not. In her interview, she also explains the difficulties of applying the copyright laws today to protect copyright holders, since the laws were written at a time when there was real, physical property—but when intellectual property is stolen, it is copied and the copyright holder still has the original, no matter how many hundreds, thousands, or millions of copies are out there. As Shepard describes in her interview:

“Most people don’t realize that half of the stuff they’re doing on their website, they’re pirates, too. I think when somebody finds that they have been pirated, unfortunately, sometimes it’s a little bit too late for that, because a lot of people believe that they have copyright as soon as they write something. That’s actually true because … as you doodle something or draw it or write it, it is the subject of copyright. However, you have to have filed a form with the copyright office, the Library of Congress, and then you have what’s called statutory protection of whatever you filed. What that means is that as long as you’ve already filed that Form TX with the copyright office and then you find the piracy, then you have statutory protections, which means you don’t have to prove it cost you any money. However, if you have not filed that Form TX, you have to actually prove that it cost you a certain amount, and that’s usually a problem. It’s very hard to do that.

“Also, many people don’t know that they can’t copy your work. I have a number of poets, for example, who are my clients, and they’re forever finding their poem on a plate for sale on eBay, and it might have their name on it or it might say anonymous. Then, they will send out a letter that I have given them a template for. It is usually a very friendly letter that says, ‘Perhaps you didn’t know that you can’t take my poem and sell it.’ And usually people will stop.

“But if someone is instead a pirate where they really aren’t going to stop, it’s often hard to get them to stop, though most people may not know they can’t take your book or poem or song or even a little piece of it and put it on a plate or include it on a website. So when you say, ‘You can’t do this,’ perhaps they will stop or perhaps there are other things you can do.

“Usually (the infringed upon material) is on a website, and that website is not run by the person who is the pirate. So what you do is you contact the person who runs that site and you say, ‘I own this poem. Here’s the registration number, here’s my information, here is where it’s located,’ give them the pin site, ‘And you need to stop this because you are providing a forum for them to infringe my work.’”

But what if the infringer doesn’t stop? Sometimes the organization they work for will take the responsibility and take it down, as an alternative to contacting the website host, such as when one professor used a book he downloaded for his class. As Shepard explains:

“Fairly recently, I had a client who wrote a book on music licensing, and a professor was actually using that book in part of his curriculum. And my client wasn’t getting any money for it. The professor had just downloaded it and now it was on the college website to download for his class. He told my client that he wasn’t going to take it down, and so my client contacted the college and said, ‘Oh by the way, this book is up there. This belongs to us. We have filed the registered copyright. Here’s the information.’ And they took it down.

“So that’s the strategy to use if the person who has pirated the material resists removing it. Usually the people that are providing the forum don’t want to have something infringing on it. And they have the right to remove it. For example, when you post on a forum or website, those little click-through things that you never read but indicate ‘I’ll accept that’ state the terms and conditions that usually include a phrase that you understand that posting something there is a privilege and not a right. What that means is that you don’t have a right to post all your stuff here, and the service can take it off whenever they want. So usually the Googles, AOLs, or the colleges of the world will take your copyrighted material down, because they don’t want to be the place where that infringing stuff is available.”

Unfortunately, copyright law as it exists today can make it difficult to make a clear-cut case that piracy is theft. When someone takes your copyrighted material, since it is not tangible, physical property, it can give the pirate a ready out, such as saying they didn’t know it was pirated material or claiming that by taking it, they weren’t causing the owner any harm, because he or she still has the material. Or it opens the door to the many excuses that pirates and their defenders use to support them making this material to others, like claiming they are simply “sharing” something with friends or that they are helping to make an otherwise obscure owner more popular by sharing that work. Shepard explains this flaw in today’s copyright law that can be used to the advantage of the pirates:

“One of the interesting things about intellectual property is that it is characterized as property, and there are three different kinds of property. There’s personal property, which is like a pencil; there’s real property, which is real estate; and there’s intellectual property, which consists of trademarks, copyrights, or patents. This is property that you own because you came up with it out of your head. But the problem is that intellectual property law is based on personal property and realty law.

“For example, with personal property, you can readily tell if someone stole your pencil if you don’t have it. With real property, you can readily tell if somebody is trespassing across your land, such as if you find broken grass or footprints there. But the problem with intellectual property is that it’s very difficult to tell if somebody has taken or trespassed on your copyright, because you still have a copy of the physical book that has been scanned or the original digital file. An early example is all of the monks copying books, infringers all. But anybody who’s copied anything without permission, that’s the infringing item.

“And how can you tell when someone makes a copy? How would you know if somebody made a photo of a photo you took or made a copy of your book and gave it to somebody else. You can’t really tell. It’s not like your pencil, where you look at your desk and your pencil is not there; it’s gone.

“So part of the problem with intellectual property is that it’s very, very difficult to use those rules that the lawmakers created to cover intellectual property, since these laws are based on trespass and physical property ownership rules to apply to something where when you take it, it’s still there. So again to take the pencil or real estate example, you can see something. But if somebody “takes” your story, you can’t see a thing. Thus, the problem with the law is that it is crafted from law that’s based on there being a discreet item, whereas, in actuality, intellectual property isn’t a discreet item.”

Still another problem, as Shepard points out, is that a competitor can use the intellectual property laws against you by, in effect, pirating your brand name or logo, and being the first to put in a claim for it. So besides stealing your creative work, pirates can steal your identity and reputation, and then use the power of the press and social media to present a very different picture of who you really are. And again the roots of the problem lie in the development of these laws to protect one’s brand or image at a time when people knew each other personally or were part of a face-to-face community. As Shepard describes:

“Under trademark law, which is about branding, when you own a brand like a phrase or a logo, to get a trademark, you publish it in this Federal Register for six months. Then, people are allowed to say, ‘Oh no, no, no. You should not own that,’ but normally people don’t read the Federal Register. But the law presumes that people are looking at it to see if somebody is infringing on their brand or trademark, or that people know what others are doing, such as back in the 1700s, when everybody knows everybody else. But the problem is that when someone files for a trademark and there is an opportunity for others to comment in the ‘public comment’ section, the average person won’t see this. So you may not know that your biggest competitor has actually filed to use your logo or brand with the trademark office, because you don’t check. So that’s another part of the piracy problem, because the trademark law presumes that everyone who has a brand, phrase, or logo they love is checking for others using it, such as in the Federal Register, but we all know they are not. So this is another way someone could be a victim of piracy but not know it at the time.

“As a result, the following could happen to undermine your use of your own brand. Let’s say that you’ve got a fantastic brand you are using, and you think you’ve got a great brand name, logo, or phrase, and your competitor decides that they want to file a trademark on that brand. So they file with the US Patent and Trademark Office, and they say that they own that. If you don’t respond and tell them that, ‘No, no. You can’t do this. I own that brand or phrase,’ then you will only own it in the spot that you have used it geographically, up until the time when they get it. After that they can own and use it in every other geographic region in the fifty states, except where you have used it in time before they have.”

Thus, a competitor, someone with a grudge against you, or anyone who wants can effectively steal your brand, which is a form of identity theft and piracy. The same thing can happen if someone chooses to file for a copyright on your own material. Unless you are actively policing this, they can get a registration and then the ball is in your court to prove they don’t really own it, which can be very time-consuming and expensive. As Shepard explains:

“Say you have written a book that you can copyright because it is your original material and say that you have not filed the Form TX with the copyright office to register the copyright. Then, if somebody steals that book and they file the Form TX and say they wrote it, as long as you can prove you wrote it by showing you have files that indicate you are first in time to create this with the exact phrases and the whole book before they do, they are never going to use that registration against you. But the Library of Congress, like the Patent and Trademark Office, has no responsibility to go out and prove that somebody else has already created or is using this material. So that’s part of the problem. The copyright and trademark law presumes that you are policing your own intellectual property. It presumes that you are policing the copyright, brands, and logos of your own creations.”

But most people don’t, so they are at risk of pirates who jump the gun on their copyright or trademark registrations, besides being at risk of what is usually thought of as piracy—making copies of their books and sharing them. So that’s why Shepard urges her writing clients to act quickly to protect their own material, as well as avoid infringing on the work of others. As she explains:

“That’s why I will constantly tell my clients to get their material copyrighted or trademarked early on, especially authors that are poets or comedians, because if a comedian’s got a really good joke, they should copyright just that joke.

“Also, I advise them how to avoid engaging in piracy themselves. For example, I tell them, ‘You cannot put a phrase at the top of your chapter or anywhere else in your book, even if you say who it comes from, since that is infringement, although there might be a defense to it, such as “fair use.”’ This is different than plagiarism, which means that you’re taking something and saying that it’s yours, such as taking a book and saying that you wrote it. But if you use something written by someone else, even if you use just a paragraph or put a quote around a sentence or two, and even if you attribute it, you have just infringed, though you might have an out through a defense to that infringement. For example, it could be ‘fair use’ if you meet five particular requirements, and if you don’t meet these you are an infringer. For example, using something for educational purposes might be a defense. So when you say something is ‘fair use’ that means you have just said, ‘I am an infringer, but I have a defense.’ And often if you are making money on this material, you may not.”

CHAPTER 3

Interviews with Writers and Self-Publishers

THE WRITERS I SPOKE WITH, many of them publishing their own books, echoed a similar refrain. They had discovered their books had been pirated, often by doing a search of their own name on the Internet to see what turned up, and then they discovered it had been uploaded somewhere or multiple places without their permission. They certainly weren’t getting any money for it, though often the website was charging a subscription fee or featured ads. But after this discovery, they felt there was little they could do. They reported that their own income had been dropping, so now they were struggling financially, and they attributed much of this loss to the pirating of their books. But they felt helpless, and even if they were able to get the books removed from one place, they had already suffered the loss from books of their own that didn’t sell since someone else could get it free. And then even after a book might be removed from one site, it could easily be uploaded again, by the website owner or by one of its subscribers or readers, and the book could be on so many other sites, the process of doing something, anything, seemed dau...