Internet Book Piracy Read online

  “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 daunting, and the cost of trying to pursue the pirates legally was too high to even consider. The one upside was at least they had more readers, more people who knew their name, and perhaps maybe could buy some of their other books, if they had any.

  It was a refrain I heard again and again from many writers I spoke to personally or encountered on writers’ forums. In the face of piracy of their books as an electronic file on the Internet, what could they do other than face the loss, along with the many other losses writers now faced from lowered advances and royalties, fewer book deals, millions of other writers publishing their own books or writing for free, and other problems in a dying industry?

  The interviews with a writer of books on magic and a writing team of a book on marketing one’s music reflected these themes. The feeling of helplessness, frustration, and discouragement in these interviews was pal
pable, but the sad fact is there was little they could do individually to combat piracy. It can feel much like identity theft, except here ideas turned into words are stolen, not one’s whole identity, though the victim can experience the same kinds of feelings of loss of something that has been close to them. And this feeling of loss goes beyond just losing money; there is a sense of being violated, of having property taken, as in any theft, and of helplessness and lost trust. They feel there is little they can do, and even a successful takedown notice won’t remedy that sense of loss.

  The experience is very different from when there is a pirate of a physical book that is copied and published under another name. For then, one can more readily go after the pirate, once discovered, and variously get the book removed from publication or get some compensation. But with electronic books on the Internet, it’s not so easy or could prove impossible to stop or get any compensation.

  Following are the two interviews that reflect these themes.

  An Interview with a Writer and Self-Publisher of Books on Magic

  One of the writers and self-publishers I interviewed was Roger Pierre. Roger has a small publishing company for his books on conjuring magic, based on using cards and coins, usually in a one-on-one close-up encounter with one or a small group of observers. He has been writing and self-publishing books since 1975, when he published a book on the magic of Francis Carlyle. Then, in 2010, he discovered on the Internet that the book had been pirated. As he describes it:

  “I always check up on how the old copies of my books are doing, and about five years ago, while I was surfing the Internet, someone listed on Google said, ‘Well, I like this book, but when’s the CD coming out?’ I was surprised, since as a publisher, I wondered what CD, since I had never planned to bring one out. So I started following the comments trail backwards, and I back trailed it to someone who was coming out with a CD that had a beautiful scan of my book in it.

  “Luckily, because I had taken the precaution of getting a proper full copyright on the book and the man producing the CD was in the United States, we were able to negotiate something that was acceptable to both of us. He agreed to pay me an advance as a licensing fee and a royalty of future sales.

  “But I think what often happens in this case, as with other older books, is there are a lot of magicians who have passed away and the family members don’t really follow through properly to assert their own rights in the book, since this is part of the inheritance or estate. This is especially true for the older books that have come out of copyright or are close to coming out, unless the copyright is renewed. So there are many disreputable publishers of magic or of anything else out there that are searching these books out and taking advantage of the fact that there’s nobody who’s protecting the copyright. So you don’t really know if they are making an honest mistake of thinking they can now publish the book, or they’re trying to sneak something around on you or not.”

  As Roger pointed out, if he hadn’t been able to negotiate a deal, the publisher could have been subjected to high statutory damages as well as actual damages. As Roger noted:

  “You have up to a hundred and fifty thousand dollars in statutory damages in a copyright infringement case if you have registered your copyright, and are more likely to get that or more if you have a track record and can show high damages. Like in my case, my book sold out twice, so it would have been an easy case for me to show that if I had put out as many books as he had put out CDs, I might have made a certain amount of money and gotten my money back that way.”

  Then, too, the Internet had helped him both in tracking down the offender—who was US-based, so he was in a better position to enforce his rights and collect fees for the publisher’s infringement—and in facilitating the piracy and the sale of the pirated work. As he explained:

  “I think the Internet is a double-edged sword. First of all, it may be where they’re taking your material. At the same time, it’s the perfect place to go to find out about copyrighting. The government has a site with information on how and why to do it, along with the forms you need. And if you even go to Wiki, the online encyclopedia, the Wiki displays this information about copy in five sections and explains pretty well what to do, so you can do this by yourself. I didn’t go to a lawyer when I copyrighted my book, since all the materials are available from the copyright office. But it’s definitely important to do this when you publish or produce anything, since you shouldn’t let this slip by. Whether you’re doing a digital movie, a digital book, make sure you get copyright so you get some protection.

  “Also, the Internet enables you to check on whether anyone is copying your work. When I do my own searches for myself, the search finds me and everything I’ve done. So, I think the best way to protect yourself from anyone taking your work is to check yourself out on a regular basis, even if it’s only once every six months. Check yourself out to protect your work.”

  An Interview with the Authors of a Book on Music

  Another interview with writers and self-publishers was with Seb Jarakian and Randy Schroeder, former partners in a music licensing company called Musync, which represents musicians, indie bands, and music labels. The company licenses their music to films, television, advertising, video games, and other users. Then, after they wrote a book called Music Licensing Insider’s Guide to help musicians protect themselves, their own book was ripped off repeatedly through downloading, substantially curtailing sales.

  Randy described the paradox:

  “We felt a strong need to provide musicians with the ability to know and understand how to get their music in the hands of people that actually license their music. The problem currently is that musicians have very few ways to make money, such as through CD sales, where people license their music and make some money if they’re good enough. But there’s been so much piracy in that industry that what happens is that people lose much of this money they could legitimately make this way. So that’s what our book focuses on—how to protect their material against piracy.

  “So our book is available on Amazon and on iBooks and Apple. And then we have a CD version that contains directories of contacts in the industry. But the irony of the whole thing is that here we are helping musicians because of the piracy issues that have thwarted their ability to make money, and then we have people that are pirating our own book. So it’s this crazy cycle that hopefully our book will prevent for musicians, while it is happening to ourselves.”

  So how did Randy and Seb discover and deal with their own piracy problem? Basically, they used the takedown notice approach used by other writers and publishers. This usually results in compliance, though in their case they ran into one pirate who was more elusive, so they did bring in an attorney to help them, which is less common. But in their case, their book was earning enough after five years of being on the market, so it was worth using an attorney to help scare the pirate into compliance and getting some compensation. Seb continues the story:

  “When our book was pirated, we found out from a Google alert that it was hosted on a social sharing site and basically contacted the organization to pull down the book. A couple of them were fairly easy. They were actually companies based out of San Francisco so it was very easy to contact them to have them pull it down. One of them was a little more complicated. I believe it was a company in Europe and they were kind of giving us a little run around and actually gave us a notification saying that we have to abide by some kind of international law or something. I don’t remember what it was. So basically, we had our attorney contact them and scare them to take the book down.”

  For most writers, the amount lost to piracy may be small, since the average self-published book sells only about 150 copies and usually the advance is the only money the writer sees from traditional publishers. Although collectively, the earnings of millions of writers combined is in the billions of dollars, though the actual amounts are hard to determine. But in some cases, for books with expectations of good sales, the earnings co
uld be high. In these cases it is worth it to hire a lawyer to gain compensation or seek to destroy the piracy site so others don’t become victims, too. As Randy explains:

  “There’s no real way of knowing how many books would be pirated, because once a book goes up on a piracy site, it’s a new item. And a new item is the hot thing because it’s usually at the top. And there are millions and millions of musicians that want this material. So it’s highly likely that they could’ve taken thousands of books. And the book on Amazon is $9.95, so you can do the math, and see that it’s not a small amount. At the same time, you’re at a loss of what to do, other than contact the company that’s hosting it to ask them to take down the book.”

  In turn, this loss of income can lead to many writers and other creative people dropping out of the industry—a concern of others in these industries and in society generally. Randy notes:

  “One of the sad parts to me about the whole piracy issue is that it starts thwarting creativity. That’s happening with musicians, with photographers, with any creative producers, because the things they create just become another commodity and they are not compensated for the value of their work. The result is that this situation keeps people from wanting to make the effort to protect their work and to be creative and put things out there. So there’s a loss of that creativity to our culture.”