Sunday, October 10, 2010

"Free" and "Freely Available" does not mean Legally Available

Yesterday, I wrote to the Government to offer my opinions on copyright and on what should be done about pirates.  I'd like to share what I wrote.

What I wrote is likely to be posted on the government website for the purpose in any case, and by the way, the public posting of protests by authors is one of the many ways that book pirates and their sympathizers covertly try to intimidate and silence those who are harmed by piracy.


Dear Sirs,

Thank you for your focus on copyright protection and innovation on the internet.

I am an author and a rights holder, and my rights have been infringed by corporations, charities shielded by the Chafee Amendment, and by individuals both for profit and for popularity. Advertisers, advertisement aggregators, hosting sites, file sharing sites, auction sites, subscription sites, and individuals have benefited in a small way from the illegal distribution of my work without my permission and in violation of my rights.

Under the DMCA, many sites that facilitate copyright infringement are obliged to remove infringing works, but only if and when they receive a notice from the copyright owner herself. If the author is unaware of infringement, it continues unchecked.

As I see it, there is no real downside to piracy. The worst that can happen is that the pirate benefits (as does PayPal, for instance, from fees on payments made by individuals to "pirates") until the file is removed at the request of the author. Many times, the pirate then simply "re-ups" the file.

Here is one example of where just one of my books is being pirated. This novella costs $2.50 to $3.50 depending where it is purchased legally.

The copyrighted artwork has been "lifted" without my permission from my website, a further infringement.

You will notice that Astatalk provides instant sharing functionality, so that anyone at all with a click of a mouse can "share" the link to my work with all their contacts on Twitter or Facebook or any other site.

Please look at this page.

Here, you may see the "top" members of Astatalk, and how many works they have "shared".  Notice that this pirate site has more than 580,000 registered members. Note that the top member appears to have shared over 34,000 items.

If you look here you can view the wide variety of copyrighted works being "shared".

Astatalk is one of dozens of such sites.

In my opinion, there are many useful and reasonable measures that could be taken by the government to protect rights holders.

1. Part of the problem with piracy is lack of education and information. Many internet users "share" because they do not appreciate that what they are doing is illegal and harmful.

2. Terms should have a legal definition.

"Free" and "freely available" are used to describe in-copyright works that have been uploaded in violation of the rights of the copyright owner, thus misleading the honest public.

"Sharing" is a euphemism that suggests that the act of copyright infringement is socially acceptable, and benign.

"Information" is currently used to refer equally to fact and fiction. Works of fiction are "entertainment" not "information" or essential "knowledge". A distinction ought to be made. While individuals may have an intrinsic right to acquire "knowledge", they may not have an equal right to free "entertainment".

(It should be noted that public libraries provide legal, free access to works of fiction and also reference works.)

Other poorly understood terms with respect to e-books include "Fair Use", "Ownership", "First Sale Rights", "ReSell Rights", "Public Domain", "Library".

3. It is not helpful that the current law forces authors into an adversarial relationship with readers -- if the authors wish to protect their copyrights.

4. Rights owners are silenced by intimidation. If one sends a DMCA, one's private information is liable to be made public. The same standard does not apply to "pirates". Their anonymity is protected. Alleged infringers should not have a greater right to privacy than their victims.

5. If a person abuses equipment and breaks the law (a car, a gun etc) that abuser loses the privilege of driving, gun ownership, and sometimes their freedom, etc.

Use of the internet is not a human right, it is a privilege and a convenience. Chronic abusers of the internet should perhaps lose their "right" to privacy, and possibly be permitted only to use the internet via fee-based mobile devices and computers in public buildings such as libraries.

In the case of a confirmed and proven "pirate" a portion of the fees they pay for "Minutes" (on mobile devices) should be garnished to fund reasonable restitution to the copyright owners or else to fund a copyright enforcement body. The current fines upon conviction ($250,000 per work) are ridiculous and must tend to promote hostility and defiance on principle.

6. Copyright is the only retirement plan some creators have. Creators do not receive 401Ks or employer sponsored pensions, or matching contributions, or health care coverage, etc. Therefore, copyright protections ought to be long-lasting. (As they now are).

If we must agree to shorten copyright to achieve international conformity --so all Berne signatory nations enforce the same standards-- fifty years might be reasonable. Ten years is too few, since many times it takes more than ten years before a work comes to market and generates income for the creator.

If a creator cannot expect to make a fair return on the investment of expertise, time, and labor, creators will either produce work of lesser quality, or will turn to other endeavors. In either case, our culture is impoverished.

If "entertainment" is to be defined by the government as essential to innovation and growth, and if "entertainment" is to flow freely, then the government must compensate the providers of the "entertainment". It would be better NOT to so define "entertainment" and to leave entertainment to the private sector.

As the law currently stands, all vendors of e-book readers that permit limited "sharing" are in technical breach of copyright law. Patently, the law must change.

Owing to e-reader manufacturers' beliefs about what the public wants, authors are obliged to offer up to 10 e-books for the price of one without negotiation. Under some publishing contracts, an author may be permitted to "share" a mere 5 free copies of her own e-book. Any Nook owner may share up to 10 free copies of that same author's e-book. Surely, the owner of the copyright ought to have more rights than the man in the street.

While making copyright logical, fair, clear, comprehensible... it seems to me that the same rules should apply to schools and universities as applies in the real world.

For all their formative years, young people are taught the version of copyright that applies to educational institutions. What we would consider "piracy" is commonplace, and condoned within schools. Then, the young people graduate, and all of a sudden they are expected to understand and obey copyright rules that are very different from everything they've ever been taught or have experienced or have seen authority figures apply.

It's no wonder so many readers are skeptical, incredulous, and outraged by the DMCA.

Finally, as you work to
  1. Generate benefits for rights holders of creative works accessible online and make recommendations with respect to those who infringe on those rights;
  2. Enable the robust and free flow of information to facilitate innovation and growth of the Internet economy; and
  3. Ensure transparency and due process in cooperative efforts to build confidence in the Internet as a means of distributing copyrighted works.
please consider that one of the most frustrating aspects right now is the violation of an author's right to negotiate and benefit from the reproduction and distribution of their work. An author may reserve valuable Audio rights, or E-Book rights from a print publishing contract because she intends to market them elsewhere.

If those rights are not available, they are simply taken (sometimes legally). Moreover, the author is judged upon the poor quality of those illegally obtained and illegally published and distributed results, adding insult to injury.


Rowena Cherry

"Copyright is a writer's pension plan" (Allan Lynch)
EPIC Award winner, Friend of ePublishing for Crazy Tuesday

For more discussions of piracy, please visit my personal blog

Where I ask, "What would you think, if you saw this in your email?"
Another 54 Complimentary Books. 
Book Mix 20
Dear Members
We are sure you will find something of interest in this terrific mix of complimentary books!
Another 54 Free Books for Everyone! (Book Mix 20). When you click the link below, follow the simple instructions on the book page to arrive at the download links page. Easy!
Would you realize that you are about to become a thief? A receiver of stolen goods?

If you are told --twice-- that the books you are about to receive are "COMPLIMENTARY" and once that they are "FREE", you'd expect that the authors and the publishers had given permission for this.


The books have been stolen, pirated, illegally uploaded to a hosting site or pirate site in violation of the authors' copyrights... "shared".

You don't know this. You've no reason to suspect that you are doing anything wrong, so you click the link.


Sounds good. In fact, the books are only free to everyone who chooses to steal them. And they are not really free. You are about to get your computer loaded up with tracking cookies. Also, you will probably be asked to send $2.00 to PAYPAL (and PayPal will take at least 44 cents as their commission for being part of this sale of links to stolen goods), or you will be asked to click on a link to watch an advert.

Notice the instructions to "Skip Ad" after 5 seconds.

Its easy to collect all the books below for FREE!
Simply click the link below, watch the advert for 5 seconds, then click on the YELLOW BUTTON (Skip Ad) as it appears at the top/right of your screen and you will be directly taken to the main book page!

Scrolling down....

Please note that we are not the 'hosts' of any books, neither did we upload them to any hosting provider. We simply find links to books, that were freely available on the web and share our findings with our members!

Get a clue. This disclaimer is here because these people know that what they are doing is on the shady side of the law. Are they an "Online Service Provider"? If so, the DMCA applies to them, and the safe harbor provisions protect them.

Here's what Chilling Effects says about safe harbor

In order to qualify for safe harbor protection, a service provider who hosts content must:
  • have no knowledge of, or financial benefit from, infringing activity on its network
  • have a copyright policy and provide proper notification of that policy to its subscribers
  • list an agent to deal with copyright complaints

But, are they hosting content? Is a list of links to illegal books "content"? Is a list of links a copyright infringement? You cannot copyright titles.

Ah! Here's the thing. They may not be hosting the books, but they are hosting the COVERS. Cover art is usually copyrighted. A lot of people think it is in the public domain, but they might not be right about that.

There's more... but this post is long enough. If piracy interests you, please check out my blog, and scroll back a day or two to see what Cheryl K Tardif (Cherish) has to say on the subject.


Rowena Cherry

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