Allworth Press, the company I founded more than 20 years ago, publishes many books for graphic designers and creative professionals in related fields. Recently I’ve received a number of emails from upset and worried authors who have found their books available free on the Internet. Pirated titles include Emotional Branding: The New Paradigm for Connecting Brands to People, How to Think Like a Great Graphic Designer, and Design Disasters.
Trying to Stop It
Pirating in the digital era has none of the swashbuckling glamour of olden times when the Jolly Roger made the innocent tremble with fear for their lives and their property. Today, nameless people who may be near or remote are scanning books and making those unauthorized versions available through peer-to-peer file-sharing sites online.
To stop this infringement, publishers have to send notices to Web sites, telling the owners to take down the offending work. If a site won’t take it down, the publisher can also send a take-down notice to the site’s Internet service provider (ISP). If the ISP won’t comply, expensive litigation may ensue.
However, expensive litigation is not practical for many publishers, and finding out about offenses, tracking down the correct contact information for Web sites and ISPs, sending out take-down notices, and monitoring compliance is time-consuming, often nonproductive, soul-destroying, wasteful work.
Who could blame the vengeful publisher or author for yearning for days long past, when a judge could say to a gaggle of pirates trembling before the court:
Ye and each of ye are adjudged and sentenced to be carried back to the place from whence you came, thence to the place of execution, and there within the flood marks to be hanged by the neck till you are dead, dead, dead, and the Lord, in His infinite wisdom, have mercy upon your souls.—From the sentencing of 52 pirates in April 1722
Who are these miscreants cutting the spines off books and scanning the pages for upload? What might be their motivation—or justification?
The copyright law includes the concept of “innocent infringers.” These are basically simple souls who rely on the absence of a copyright notice to infringe someone’s copyright. Such naive creatures can throw themselves on the mercies of the federal district court and plead for mitigation of damages.
Perhaps there are some people who have no idea that copyright exists and who simply copy whole books without any sense of wrongdoing. In one bizarre situation, a pirate added his moniker to the cover of a pirated edition as if the act of scanning had somehow made him a co-author.
Then there are the infringers who know that what they’re doing is wrong but see no likelihood of being punished and enjoy stealing with impunity. Ethical concerns are pushed to the side. The power to take is the only justification needed. What can you do with people like this?
After that in this sequence of Dantean circles might come the infringers who believe that the copyright law is mistaken in giving creators a monopoly over their creations for a limited period—the copyright term of the creator’s life plus 70 years. Like Robin Hood opposing the injustices of the usurper King John, these people scan and make books available because all intellectual property should belong to the Volk, the great collective. That, of course, is greatly simplified by the ease of digital transfer.
The problem these infringers ignore is the impact on creativity. If creators no longer receive income from what they create, some other system to support creative work would have to be developed, but I haven’t a clue as to what it might be.
Another rationale might be that the book is not available as an e-book and therefore the infringer is meeting an unfilled need. Further, the infringer might argue that e-books don’t compete with physical books (p-books), so no harm is really being done. But the argument doesn’t work. It is an infringement to make an e-book from a p-book unless you own the rights.
Or the infringer might argue that the piracy is a protest against what the pirate considers to be the high cost of e-books. Amazon has priced e-books for the Kindle reader at $9.99. Publishers breathed a collective sigh of relief when the iPad negotiations raised the range of retail prices to about $15, although publishers might really prefer prices more in the $20–$25 range for e-books, since many new p-books sell for $25.
The debate over e-book prices revolves around the perception that e-books add no cost to the production of p-books and therefore should be cheaper. Publishers don’t see it quite that way, since the e-book is simply one of many add-on revenue sources that come from the investment in creating a book (and since there are and/or might be books that are only e-books).
While it doesn’t really matter what the price level for e-books is now—when they comprise only 2–3 percent of the market—the growth of e-book sales has been rapid; and if, at some point in the next decade, e-book sales are greater than p-book sales, low e-book prices might threaten our survival.
So, whatever the motive, if someone scans a book and makes it available free, that person is acting unethically and illegally.
As I think about the people who are scanning our graphic-design books, I wonder if they might not even be readers. In the vast grayness of the Web, there is at least one other possibility: The scans could be the work of “click farms” that harvest creative content of all types (music, movies, games, books) to make consumers click on their Web sites, where each click generates revenue for the site.
It’s surprising that we don’t yet have software to find infringements, send take-down notices, and monitor compliance. One very large publisher is testing a system that takes a statistically unusual phrase on every 10th page of a book and then uses those phrases to search for pirated versions. This system also sends automatic take-down notices, but if the notice isn’t complied with or the site is a repeat offender, then a corporate legal department must intervene. Might smaller publishers and distributors of creative content eventually use a similar security service? Possibly, if it’s found to work and if it’s affordable.
The publishing world is still trying to decide whether e-books are a marvelous boon (add-on income) or a terrible threat (lowering prices and reducing p-book sales). Digital piracy is certainly one factor in the mix that helps make life—and publishing—interesting before it’s over.
Tad Crawford, the founder and publisher of Allworth Press in New York City, is an attorney and the author of Business and Legal Forms for Authors and Self-Publishers, The Writer’s Legal Guide, and Legal Guide for the Visual Artist (now being revised for its fifth edition, to be published in November 2010).
Two Strategies for Dealing with Pirates
by Joe Donnini
Now that the Internet has made it easy to copy and disseminate all or part of an e-book without permission—or payment—many publishers are increasingly worried about piracy.
Statutes designed in part to curb piracy include the Digital Millennium Copyright Act, which became law in 1998. A key provision of this legislation involves making it illegal to circumvent any technology employed to restrict access to a particular work. The law also provides penalties for making and selling devices or services that circumvent anti-access technology. Although there are limited exceptions, the general premise is that if a publisher utilizes protections to prevent unauthorized downloading of or access to its materials, and someone bypasses these protections, that person could face liability.
Many copyright holders of e-books, CDs, software, video games, and the like use Digital Rights Management (a.k.a. DRM) to prevent pirates from gaining unauthorized access to their works, and indirectly to promote licensing of those works. Among other things, DRM technology can control levels of access to a work or how many times a user can view a work.
Critics charge that DRM technologies are overinclusive, since DRM may interfere with “fair use” and deter potential purchasers from obtaining complete access, including, for example, access to an e-book on various different devices they use. People who do purchase e-books with DRM often protest that its restrictions prevent them from fully enjoying the value of the book.
Over time, the law has evolved to try to address some of these problems, but challenges include:
• the cost of enforcement, which is often prohibitive
• the fact that, as technologies evolve, so do the ways pirates can
bypass new safeguards
• the possibility that DRM technologies do stifle legitimate uses
To minimize the risk of piracy and increase the chances of getting paid for use of your digital content, you can take three steps.
1. Always ensure that your copyrightable work is registered with the United States Copyright Office. One benefit of registration is the ability to sue and recover statutory damages, including attorney’s fees.
2. Vigorously enforce the law against infringements, and prepare to do so by:
• using a well-written online licensing agreement and requiring that purchasers agree
to it before they purchase your e-book
• encouraging authors to identify any possible infringements and then notify you so
you can pursue infringers
• working with associations or others in the industry to stop infringements
• consulting legal counsel to assess how to proceed with enforcement of your rights
under the law
3. Create an environment that makes it easier to purchase your work than to steal it. This involves:
• choosing not to use DRM in the interests of giving purchasers higher perceived value
• realizing that some of your work may be pirated, with greater exposure perhaps
increasing sales in the long run
• recognizing that the online market is different than traditional venues and pricing
accordingly; price points that work within your business model and that are lower
than traditional print prices may help discourage pirating
You can, of course, choose both to enforce your rights and to make it easier to buy your work than to steal it. The debate on DRM is far from over, but when you evaluate the costs of enforcement, the current state of the law, and the relative ease of permitting cost-effective and convenient downloads, you might decide to work on turning potential pirates into customers.
Joe Donnini, a California attorney, specializes in business, real estate, and intellectual property/entertainment law and teaches law school courses on copyright law and other subjects. He is also a self-publisher. For more information, visit joedonnini.com or call 310/321-7643.
Piracy Cases in Point
by Nancy Seifer
We recently had an incident with book piracy, and I thought it might serve as a useful warning to other publishers. Our book was turned into an e-book last year, and it showed up on Scribd, the free download service.
By the way, I discovered the book’s availability on Scribd through Google. Every month or so I check out Google listings of our book just to see what is new. I’ve found that to be a useful practice, along with signing up for Google Alerts—the free service that emails you whenever the particular text you specify appears in new Google listings. (It doesn’t catch every appearance, but it does catch many.)
When I noticed Scribd, I clicked through to find out what it was and discovered that the entire book was available for free.
First I sent Scribd an official letter, as requested on its site, by certified mail. In response, a couple of weeks later, I received an email that at first seemed impenetrable. It was not at all user-friendly, nor was the tone of it friendly. Once I figured out how to fill out the online form and submitted it, the company immediately took the book down. By that point, however, it had been downloaded more than 100 times.
When I mentioned this to our distributor, I received some useful articles about this phenomenon. Here are some links:
If you have had similar experiences and found good ways to deal with piracy, please email Judith Appelbaum, the Independent’s editor (firstname.lastname@example.org), so she can help us share our information.
Nancy Seifer is the founder of Gathering Wave Press, which publishes When the Soul Awakens: The Path to Spiritual Evolution and a New World Era. To learn more, visit whenthesoulawakens.org.