In April 2010 we asked Can You Be Sued For Illegally Downloading a Book? The answer was yes – if publishers are willing to incur a lot of public relations heat for going after the likes of teenagers or old people. It would take an intolerable provocation or the loss of a lot of money to piracy – or both – for a publisher to seek damages in court from those whose crime was nothing more flagrant than sharing a file.

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

Whenever there’s a high-profile crime it’s only a matter of time before someone belittles the victim.  That’s what seems to be shaping up in the Justice Department’s indictment of file-sharing behemoth Megaupload on charges of massive copyright infringement. Stuart P. Green, a Rutgers Law School Professor blogging in the New York Times, writes “Whatever wrongs Megaupload has committed, it’s doubtful that theft is among them.”

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.

A chill wind has ruffled the waters of the safe harbor in which pirates flourish under protection of federal law. A court ruling has challenged their right to take refuge there in cases of flagrant flouting of the spirit of the law.

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.

Last summer we engaged Muso, a British-based antipiracy service, to help Curtis Agency and E-Reads authors take down files of their books that were being carried on illegal filesharing websites. A number of agents and authors followed suit and have taken advantage of Muso’s aggressive search-and-remove program.

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

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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.

FileSonic, a filesharing website has voluntarily disabled itself, obviously scared out of the game by the Justice Department’s shutdown of MegaUpload and the arrest of its principals.  “FileSonic has disabled all file sharing functionality on its website, restricting access so that users may only download their own files,” reports Ars Technica.

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.

Simon van Meygaarden, a friend and correspondent based in the Netherlands, holds some views about illegal downloading that diverge from our own (including the term “illegal downloading”). In particular he believes that financial losses due to such downloads are an infinitesimal fraction of the potential legitimate revenues.  He has actually demonstrated mathematically that for every $1000 of potential to be made by an authorized content provider, only $1.40 ends up in the pocket of an unauthorized user.

Read Simon’s calculations.  Then I’ll have a few of my own.

Richard Curtis

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Illegal Downloads – What are we talking about?

Let’s start with a term that is misused more than “piracy” and “crisis” together, the illustrious and infamous – turning on my hollow voice – “Illegal Downloads”.

A download is the transfer of data from a server or host computer to one’s own computer or device. Let’s define my number of downloads as “N”.

Now, not every download gets transmitted error-free, and if one bit goes wrong the download is unusable, so let’s define the Corruption Factor “CF” as an error-percentage. If 10% of my downloads is corrupt and unusable, CF = .1

My number of error-free download now is N * ( 1 – CF )

Some error-free downloads are password-protected, and they usually contain viruses or point to infected websites, so let’s define the Viral Factor “VF” also as an error-percentage. If 10% of the downloads is password protected, VF = .1

My number of safe downloads now is N * ( 1 – CF ) * ( 1 – VF )

Some of my safe downloads are never played (or watched or read), so here we have the Play Factor “PF”.

My number of played downloads is N * ( 1 – CF ) * ( 1 – VF ) * PF

Now I have played the download and I am finally aware of the product itself. Clearly, some products are copyright free or public domain. So here is the Infringement Factor “IF”, the percentage which is actually illegal, by American law.

My number of illegal downloads is N * ( 1 – CF ) * ( 1 – VF ) * PF * IF

Some of my illegal downloads are crap, and I would never have bought them anyway. The rest are good, I might have actually bought them, and that’s the Buy Factor “BF”.

The number of product I might have actually bought is N * ( 1 – CF ) * ( 1 – VF ) * PF * IF * BF

So let’s put some numbers to this formula, from my own experience.

50% of my downloads are corrupt, so CF = .5
25% is password-protected, VF = .25

The Play Factor is more difficult, as it varies with the type of product. I have downloaded about 2.000 movies, and I have actually tried to watch about half of them, so PF_movie = .5. Being a D.J., I have downloaded perhaps 20,000 albums, but honestly, I have only tried to listen to about 5% of those, so PF_album = .05. I also like books, my entire house is filled with them, I can’t actually store anymore, but, I shamefully admit I have about 250.000 ebooks, and I only tried to read a fraction of them. Let’s say one in a thousand, so PF-ebook = .001.

For the sake of simplicity, let’s say 75% is illegal (IF = .75), and 50% is crap (BF = .5).

Now imagine a publisher, who sells a million ebooks a year, and fears that for every ebook he sells, ten others are downloaded, so N = 10 million. His loss in revenue, in terms of numbers of books, would be:

10,000,000 * ( 1 – .5 ) * ( 1 – .25 ) * .001 * .75 * .5 ==
10,000,000 * .5 * .75 * .001 * .75 * .5 ==
1,406.25 ebooks == about 0.14% of his turnover

Here’s a question: how much money would it cost (advertisement, improving product quality, reducing production costs) to raise one’s turnover with 0.2%?

I admit, my actual numbers are personal, and they are most certainly wrong as a reliable average. But my analysis, I think, is right. Morally, and emotionally, I completely understand and support the fight against piracy, however, rationally, and economically, it is a whole different ball game, and it all boils down to how much money (energy, time and resources) one is currently spending on fighting piracy, and how much it would take to estimate the right numbers and raise one’s turnover accordingly.

Simon van Meygaarden

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Richard here again.

Let’s concede the correctness of every one of Simon’s calculations and grant his conclusion: that illegal downloading is siphoning off a mere $1.40 out of every $1000. My question for him is simple: Suppose you keep $1000 on your night table and a dozen burglars enter your home, but they remove only $1.40 of it, will you feel as benignly about your loss as you do about mine?

Richard Curtis

For a complete archive of articles about piracy, visit Pirate Central.

If you’re a fan of  Clash of the Titans you’re in for a real treat: two titanic lobbying groups are on a collision course.  Ground zero for the impact is the United States Congress. The issue is piracy.

Bills currently being written in House of Representatives committees are aimed at curbing search engines like Google and Yahoo that link to illegal file sharing and bitTorrent websites, and stopping payment facilitators like PayPal that enable transactions for unauthorized books, movies and music. (In fact, you can use Google to link to free versions of Clash of the Titans here, but we urge you to be very careful  clicking on links to free downloads as they may be phishing for your bank account information.)

Among the parties lobbying for passage of a tough law are the movie and music business, the US Chamber of Commerce, and the book industry (see Authors Guild President Scott Turow’s testimony before Congress). Even big unions like the AFL-CIO are pushing for passage, because piracy, particularly the offshore brand, steals American jobs.

On the other side of the issue are Yahoo, Google, Mozilla, the Tea Party and a lobby-full of freeists including, predictably, the Civil Liberties Union, all rallying under the banner of Down With Censorship. “Naturally,” writes Edward Wyatt in the New York Times (Lines Drawn on Antipiracy Bills), “the howls of protest have been loud and lavishly financed, not only from Silicon Valley companies but also from public-interest groups, free-speech advocates and even venture capital investors. They argue — in TV and newspaper ads — that the bills are so broad and heavy-handed that they threaten to close Web sites and broadband service providers and stifle free speech, while setting a bad example of American censorship.”

“Google itself,” Wyatt informs us,  “has hired at least 15 lobbying firms to fight the bills; Mozilla has included on its Firefox browser home page a link to a petition with the warning, ‘Congress is trying to censor the Internet.’” Texas representative Lamar Smith takes a different view of the Silicon Valley pressure groups: “They’ve made large profits by promoting rogue sites to U.S. consumers,” he contends.

Last May, when Google’s executive chairman Eric Schmidt declared in unequivocal terms that he opposed any effort to curtail Google’s right to link to piracy websites like Pirate Bay, we declared “Game Over.“  Now, with US lawmakers taking up the issue, there’s a glimmer of hope that the game is back on.

But it’s only a glimmer, and if our legislators are true to form, the Right-to-Information promoters will either kill the bill or water it down to the same kind of joke that is the Digital Millennium Copyright Act. That piece of legislation is ostensibly designed to punish pirates, but the Silicon Mafia prevailed on the lawmakers to create a “Safe Harbor” provision that gives accused infringers a period of time in which to respond to accusations. Safe Harbor also puts the burden of proof on rights holders, causing them to go through  hoops of flame to prove they are the true owners of the stolen content.

We have been criticized for supporting tough antipiracy measures because they might lead to government censorship. The chances of the pendulum swinging from its current position to state censorship are so absurdly long they are not worth discussing.  Meanwhile, the pirates continue to screw legitimate copyright owners while the search engines hold down their arms and legs.

Richard Curtis