We cited the case of a music downloader sued by the recording industry who passed up the chance to settle for $4,000. When his case was finally adjudicated he was required to pay $675,000 to a plaintiff maddened like a stuck boar by the theft of its property. Though the Recording Industry Association of America incurred withering PR wrath, it sent a signal to all would-be music filesharers, however innocent or ignorant, to think twice before capturing that tune. (See He Should Have Paid the Two Dollars)

But surely that couldn’t happen in book publishing, that refined industry once known as The Gentleman’s Profession. Or could it?

John Wiley & Sons, one of the oldest and most distinguished publishers in America, finds itself in the role of that maddened boar. How deep is Wiley’s wound? Freeloaders are feasting on the publishers Dummies series. For instance, says Wiley, they purloined over 74,000 e-copies of its Photoshop CS5 All-in-one for Dummies.

According to BBC.co.uk, “Papers filed in New York and revealed by the Torrent Freak news site said four defendants were involved. The firm’s lawyer said that he believed this would be the first trial of its kind based on the use of Bittorrent. The peer-to-peer communications protocol allows users to upload and download files to each others’ computers. Wiley had previously filed 15 lawsuits to obtain the identities of about 200 people believed to have infringed the copyright of its titles. It said in papers filed last October that users had ‘engaged in the illegal copying and distribution of Wiley’s ‘For Dummies’ books through the peer-to-peer file sharing software known as Bittorrent’.”

Though Wiley seeks only the minimum statutory damages of $750, the Copyright Law allows as much as $150,000 if the accused fights the case and loses.

Details in ‘For Dummies’ guide publisher, Wiley, seeks piracy trial

Richard Curtis

This blog post was originally published in Digital Book World as Bad PR Be Damned, Besieged Dummies Publisher Sues Filesharers

Well, Professor Green, unless you have a better word for it, I’m sticking with theft.

Green argues that the complexities of modern intellectual property law have obscured the simplistic legal standards by which theft is measured. Those standards were set in 1962 when the American Law Institute issued the Model Penal Code defining property as “anything of value.” “Henceforth,” says Green, “it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly.”

Green’s beef with the Institute’s definition is that contemporary media and services like the Internet blur moral and legal principles. “We should stop trying to shoehorn the 21st-century problem of illegal downloading into a moral and legal regime that was developed with a pre- or mid-20th-century economy in mind. His authority? “Lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.”

We don’t know who these “lay observers” are, but they don’t seem to have spent much time speaking to victims. If they had, they might have heard something like this from an author: “If I was in a bookstore, would I just drop this book in my purse and walk out of the store? Because that is exactly what you are doing when you download a book without buying it.” (See Are Downloaders Better Than Muggers?)

The subtle intricacies of modern life make it easy to rationalize crimes like stealing and call them something else.  But calling theft a non-crime doesn’t make it a non-crime. Green may have many other words for the deed (the book that he and a social psychologist are writing is called 13 Ways to Steal a Bicycle: Theft Law in the Information Age). But for victims there’s only one way to say it: “I’ve been robbed.”

Judge for yourself: When Stealing Isn’t Stealing by Stuart P. Green.

Richard Curtis

For a full archive of postings about piracy, visit Pirate Central.

As things stand, if you sell somebody else’s copyrighted book on your website you are protected by the so-called safe harbor provision of the Digital Millennium Copyright Act. The offended author is required to file a takedown notice and provide evidence of his or her ownership of the copyright. Then you have a reasonable period of time to take the files down without penalty or liability. There is – or at least until yesterday there was – no distinction between inadvertent use of the work and flagrant expropriation.

But a ruling by a US Court of Appeals did draw that distinction in a suit brought by Viacom against YouTube for running Daily Show videos without permission: “A reasonable jury could conclude that YouTube had knowledge or awareness” that YouTube was infringing, said the ruling.

If the Court’s interpretation holds up, it could remove the shield protecting hardcore pirates. Yes, it could also expose casual infringers ignorant of the law, but it’s not likely that a reasonable jury would find them guilty by the standard created by the yesterday’s Court ruling. Said plaintiff Viacom: “The court delivered a definitive, common-sense message — intentionally ignoring theft is not protected by the law.”

Details in Appeals Court Revives Viacom Suit Against YouTube by Brian Stelter in the New York Times.

For a complete archive of E-Reads postings about piracy, visit Pirate Central.

Richard Curtis
Note to readers: Digital Book World has invited me to post my blogs initially on its website before releasing them on E-Reads, and this content is re-published with DBW’s permission. Click here to view the original posting.

Muso has announced that it is adding takedowns directed at torrent distribution sites, flagrant but elusive copyright violators that have up to now frustrated efforts to combat them.

This antipiracy service is offered free of charge to clients of Curtis Agency and authors published by E-Reads. We also serve as liaison with Muso for other agents, authors and publishers. Click HERE for more information and price quotations.

Below is Muso’s announcement.

Richard Curtis

*************************

We’re pleased to announce that Muso now supports takedowns for torrent sites. Over the last two weeks we’ve been scanning for torrent files for your campaigns and you may have already noticed torrent results appearing in your campaigns.

We’ve integrated these results into our existing system so taking down a torrent file is just as easy taking down a cyberlocker file – simply hit the ‘Send Takedown’ option once you’ve verified that the file is yours. This means all our existing features, such as filtering, grouping and auto takedowns, all continue to work with torrents.

No extra charge
Torrent takedowns are included in all pricing plans, with no extra charge for searching for torrent results! A torrent takedown is charged in exactly the same way as any other takedown you send, and of course, reminder messages are free.

Sites supported
As with cyberlockers, we aim to support every site. We’ve already added all the major torrent sites such as isohunt.com, kat.ph, yourbittorrent.com, torrentdownloads.net and extratorrent.com. And we’ll keep adding more sites over the coming weeks.

One notable omission is The Pirate Bay, which we haven’t added because they don’t support DMCA takedowns. Although there have been attempts to shutdown this site for many years, it does appear that sites that do not conform to DMCA are now receiving even more attention from the authorities and many are being successfully shutdown.

Coming Soon
As we announced a few weeks ago, we are planning to add support for Google takedowns soon. This will allow you to remove google results for any site which refuses to react to DMCA (e.g. The Pirate Bay), or to remove any sites that link to illegal copies of your content that are being listed above legal download sites.

DMCA Misuse
We’ve noticed a recent increase in articles on the web discussing inappropriate use of DMCA notices. Although none of these are directly related to our user’s takedowns, we would like to remind all our users to use Muso responsibly. We strongly believe that DMCAs are currently the best tool to tackle online piracy, as they allow rights holders to have content removed quickly and easily. But it’s important that they aren’t misused, and that you only issue DMCA notices to files that you own the rights to.

Please ensure that you properly review all files before sending takedowns – here are some tips on the review process.

Always check the file name – if it doesn’t uniquely identify your product, then select the S icon to the right of the file name to view the web page where this link was found, which will help you to identify the file.

If you have a large number of files to review switch to the Groups tab to view the files grouped by name, so you can takedown or ignore groups of files at once.
If you only want to takedown files for specific releases, or if your campaign’s title is a generic word, then use the SEARCH/FILTER options to filter out unwanted results.
Only use the ‘Send Takedown For All Files’ button once you have reviewed all available files and ignored any that you do not own the rights for.

Regards,

The Muso Team

Stampeded?

Did opponents of SOPA throw the baby out with the bathwater? Cary H. Sherman, CEO of the Recording Industry Association of America, says yes in a recent New York Times op-ed piece.

Sherman asserts that Google, Wikipedia and other Web heavy-hitters cried “Censorship!” like shouting “Fire!” in a crowded theater, and stampeded a gullible public and its government servants into reversing legislation that would have afforded some measure of protection to the victims of copyright piracy.

“Policy makers had recognized a constitutional (and economic) imperative to protect American property from theft, to shield consumers from counterfeit products and fraud, and to combat foreign criminals who exploit technology to steal American ingenuity and jobs,” writes Sherman. “But at the 11th hour, a flood of e-mails and phone calls to Congress stopped the legislation in its tracks. Was this the result of democracy, or demagoguery?”

“Since when is it censorship to shut down an operation that an American court, upon a thorough review of evidence, has determined to be illegal?” the editorialist asks. “When the police close down a store fencing stolen goods, it isn’t censorship, but when those stolen goods are fenced online, it is?”

Now there is no legislation in place except the joke known as the Digital Millennium Copyright Act, piracy is out of control, and legitimate copyright owners are being stripped of their hard-earned livings by brazen thieves operating in broad daylight (See A Bootleg E-Book Bazaar Operates in Plain Sight)

Sherman urges the Web minions who lead the charge against SOPA to do the right thing and listen to the voices of the victims. “Perhaps this is naïve, but I’d like to believe that the companies that opposed SOPA and PIPA will now feel some responsibility to help come up with constructive alternatives. Virtually every opponent acknowledged that the problem of counterfeiting and piracy is real and damaging. It is no longer acceptable just to say no.”

That’s a motion we’re ready to second.

Details in What Wikipedia Won’t Tell You by Cary H. Sherman.  And a complete archive of E-Reads postings about piracy, visit Pirate Central.

Richard Curtis

Note to readers: Digital Book World has invited me to post my blogs initially on its website before releasing them on E-Reads, and this content is re-published with DBW’s permission. Click here to view the original posting.

OPEN

So, the minions of the Web rose in fury to stymie passage by the United States congress of SOPA, the Stop Online Piracy Act, thus ensuring freedom of Internet Service Providers from curtailment of their First Amendment rights. Beneath the blare of the victors’ trumpets, however, the pained cries of piracy victims were completely drowned out.  Does no one speak for them?

A recent editorial in the Sunday New York Times, “Beyond SOPA”, reminds us that some legislators speak for those whose right to earn an honest living has been pillaged by unscrupulous criminal syndicates, some of which are supported by foreign governments. “Piracy by Web sites in countries like Russia and China, which offer high-quality bootleg copies of movies and music, is a real problem for the nation’s creative industries,” said the editorial, pointing to “legislation that could curb the operation of rogue Web sites without threatening legitimate expression.”

The bill the editorial referred to also sports a four-letter acronym, but one that we hope will not be as dirty a word as SOPA.  This one is called OPEN: the Online Protection and Enforcement of Digital Trade Act. Here’s how it is designed to work: “Content owners could ask the International Trade Commission to investigate whether a foreign Web site was dedicated to piracy. The Web site would be able to rebut the claim. If the commission ruled for the copyright holder, it could direct payment firms like Visa and PayPal and advertising networks like Google’s to stop doing business with the Web site.”

The Times thinks that OPEN offers solutions that do not have the same pitfalls as those of SOPA, and we share the editorial’s support. We just wonder, though, why all the attention is focused on foreign pirates when a domestic piracy industry continues to thrive. And why just movies and music? What are we authors – chopped liver?

Richard Curtis

For a complete archive of E-Reads postings on piracy, visit Pirate Central.

Ryan Paul, reporting on the self-inflicted takedown, expressed puzzlement that Filesonic “already has strong procedures in place to combat piracy” such as digital fingerprinting to detect attempts to upload unauthorized files, and observes the takedown procedures prescribed by the Digital Millennium Copyright Act.

Paul should not be nonplussed that a so-called law-abiding website is taking itself down.  The DMCA’s procedures, watered down by powerful web carrier lobbies, has become a travesty, making it so hard for piracy victims to get satisfaction that many give up in frustration. (See Takedown Notices: Antipiracy Weapon or Exercise in Futility?)

Another leading file locker provider, RapidShare, does not seem prepared to follow FileSonic over the cliff.  “Legitimate hosting providers have nothing to fear,” they told Ars Technica, “as long as they comply with requests from rights holders and don’t turn a blind eye to piracy conducted with their service.”

Read details in FileSonic has disabled file sharing in wake of Megaupload takedown

Richard Curtis

The news of SOPA’s likely defeat by Internet activists contrasts bizarrely with the arrest of one of the Web’s most flagrant and flamboyant copyright violators.  Even as the massed forces of Google, Facebook, Twitter, Wikipedia and other popular Web interests laid siege to proposed government restrictions of their freedom, the US Justice Department and the FBI terminated the freedom of the notorious Kim Dotcom, founder of Megaupload, an Internet locker service that facilitates anonymous transfer of movie, music, text and other files.

The indictment against Dotcom and six cohorts, issued by a grand jury, states that they criminally conspired to infringe copyrights to the tune of $500 million. They face 20 years in prison. Dotcom’s website has been shuttered. If you click on megaupload.com you’ll get the above banner.

It will be interesting to see whether the Internet community, so passionate in its defense of freedom – including the freedom to link to alleged infringers (see Game Over: Google Insists on Linking to Pirate Sites) – will rally to the defense of the Megaupload gang. Will Dotcom and Co. be considered brethren to the innocent and ignorant folks who unknowingly download copyrighted music and movies? Or will the immense scale of megaupload’s allegedly illegal traffic cause the Googles, Facebooks and Twitters to distance themselves from the defendants?  It will be instructive to see how it all plays out.

It will also be instructive to see whether the Justice Department’s indictment against the Megauploaders will stick. The case of Pirate Bay, formerly the world’s largest BitTorrent file-sharing tracker, might shed some light on these speculations. In 2009 four men involved in Pirate Bay’s website were arrested, tried, sentenced to a year in jail and ordered to pay about $4.5 million in damages. After their release, the website (apparently under new management) was relaunched from a venue in the Ukraine, then moved again to Netherlands where it is now headquartered in Cyberbunker, a military nuclear warfare bunker built by NATO to withstand a nuclear war and now used as a webhosting data center according to TorrentFreak.

But there’s more: in 2009 Sweden’s Pirate Party seized on the high profile Pirate Bay suit to rally supporters to a victory in the European Union’s parliamentary elections, winning a seat.  (See Swedish Pirate Booty: a Seat in Europe’s Parliament).

Ever since Robin Hood and his merry band roamed Sherwood Forest, the noble, romantic bandido has been a staple of our imagination. So, the reward of a short sentence, a modest fine, and a seat in government for Kim Dotcom will come as no surprise.

For a detailed account of the arrest of Mr. Dotcom and his companions, read Founder of Shuttered Web Site Sought Limelight by Kevin J. O’Brien in the New York Times.

Richard Curtis

Piracy is an extremely controversial and complicated subject. For a complete archive of E-Reads postings pro and con, visit Pirate Central.

Saint Petersburg, Home of Ali Baba, Floppy and the Rest of the Koobface Gang

St. Petersburg, Russia, is one of the world’s most exquisite cities, a spectacular treasure trove of palaces, parks, monuments and churches and, above all, the incomparable Hermitage museum.  If you’re visiting and have a bit of time drop by to say hello to the Koobface Gang, the quintet of computer criminals who live like pashas in plain sight, making St. Petersburg their haven under the gracious indifference of the nation that hosts them.

Riva Richmond, writing in the New York Times, reports that “Five men believed to be responsible for spreading a notorious computer worm on Facebook and other social networks — and pocketing several million dollars from online schemes — are hiding in plain sight in St. Petersburg, Russia, according to investigators at Facebook and several independent computer security researchers. The men live comfortable lives in St. Petersburg — and have frolicked on luxury vacations in places like Monte Carlo, Bali and, earlier this month, Turkey, according to photographs posted on social network sites — even though their identities have been known for years to Facebook, computer security investigators and law enforcement officials.” They post pictures of themselves on the Foursquare network and tweet to the world about it, simultaneously thumbing their noses and rubbing their knuckles in our eyes.

For years the conspirators have seduced suckers into clicking on tempting videos, initiating a malware transfer that eventuates in the purchase of phony antivirus software. It is estimated that their poison packages occupy as many as 800,000 computers and their racket pockets at least $2 million a year.

Yet, despite the fact that their names are publicly known, “None of the men have been charged with a crime and no law enforcement agencies have confirmed they are under investigation,” says Richmond, who lists them by their real names and their cutesy nicknames.

How do they get away with it, and can anything be done to put a halt to their predations?  Read Web Gang Operating in the Open

Richard Curtis

For a complete archive of articles about piracy, check out Pirate Central on the E-Reads website.

Remember last summer I warned you? “Before you take the job with that comic book company,” I said, “I want to make it absolutely clear that if you accept it you will NEVER, EVER own the rights to your work. Your employer will be free to create $100 million movies with ten sequels. Your precious creations will be works for hire and your only compensation will be the salary they pay you.”

My case in point was Jack Kirby, one of the co-creators of such immortal comic book characters as The Incredible Hulk, Spider-Man and X-Men. “These characters have generated tens of millions of dollars in revenue over the last five decades from everything from comic books to movies to toys and collectibles,” the New York Times reported. But because Kirby produced them as a writer for hire, he had no copyright claim on them After he died his estate tried to recover the rights under a provision of the US copyright law entitling next of kin to terminate contracts signed by the deceased artist, But the claim was rejected by a court because – again – Kirby had given up his rights as an employee of Marvel on a for-hire basis.

In case that decision didn’t sink in, my Comic Book Writer friend (and your brother the novelist for hire), in December Gary Friedrich, claiming to be creator of another Marvel blockbuster, Ghost Writer, met the same fate beneath the gavel of a federal judge. It seems Friedrich didn’t read, or take seriously enough, the fine print on the Marvel paychecks he endorsed, according to an Associated Press story.

“US District Judge Katherine Forrest tossed out 4-year-old claims brought by Gary Friedrich, who said he created the motorcycle-driving Ghost Rider with the skeletal head that sometimes had fire blazing from it. A Ghost Rider of the 1950s and ’60s was a Western character who rode a horse. The judge said Friedrich gave up all ownership rights when he signed checks containing language relinquishing all rights to the predecessor companies of Marvel Entertainment LLC.” (See ‘Ghost Rider’ comics creator loses rights lawsuit)

So – has the lesson sunk in? As we said when we wrote up the Kirby case, Abandon All Hope, Ye Comic Book Artists.

Richard Curtis

Shows how wrong one can be, and it proves once again that when great principles are involved, litigants will fight harder than they will over mere money.

Today Publishers Weekly reports that Open Road has decided to lawyer up. The e-book publisher recently launched by former Harper CEO Jane Friedman, accused by Harper of infringing on the latter’s rights, has retained the team of attorneys that represented the Authors Guild in its class action case against Google.  Open Road Chief Operating Officer Chris Davis said “It appears to us that HarperCollins is trying to intimidate authors, overturn established law and grab rights that were not in existence when the contracts were signed many years ago. We are confident that we will successfully defend authors’ rights and we look forward to filing our response in court.”

Considering that copyright authority Lloyd J. Jassin calls it “The Court Battle that Could Determine the Fate of the Book Industry,” authors and publishers may get their wish to see contradictions and ambiguities in book contracts, respecting digital rights, resolved once and for all.

But at what fearful price? The cost of litigating the issues to the max, including appeals that could rise as high as the Supreme Court, will be millions. Both parties have deep pockets. The whole world will be watching.

For Jassin’s superb analysis of the issues and potential legal strategies, read Who Controls eBook Rights?

Richard Curtis