Internet Book Piracy

by Gini Graham Scott

  “Many authors have to work second and third jobs to allow them to do what they love. By pirating books, you’re completely disrespecting them … Pirating means that you’re lowering the chance of the author getting any royalties in the first place, and increasing the time it will take them to earn those royalties.

  “There are so many other options: visiting your local library to take out books, second hand bookshops, borrowing from friends, trading books. The difference is that all of the books have been paid for beforehand in some form and so, whilst you’re not contributing, you’re still supporting the author. Feel bad? You can help the author even more by leaving reviews on websites and talking as much as you can about the book via the social media and offline.

  “Most people wouldn’t go into a shop and walk out without paying, so how is a book any different. It’s not. Piracy is theft.”164

  Another educational strategy is for publishers, writers, and the media to advise readers that there are risks of getting a free ebook, such as the possibility of getting a virus-infected computer, or the ebook could be used as a come-on to get personal information from one’s computer. For example, Harper Collins Chief Digital Officer Chantel Restivo-Alessi says that the industry needs to communicate the risks more to readers “so that people start to think, ‘I might be saving a few bucks, but do I really want to risk spending $100 or $200 [on repair] and losing my existing content in the process?’”165

  In short, all kinds of alternatives have been developed to reduce piracy outside of the criminal justice and civil litigation model, because the war against them seems unwinnable. It’s like prohibition in the 1920s or the drug wars from the 1940s to the present. So many people are doing it, that it doesn’t make sense to continue to enforce laws or litigate against it in what is an expensive, time-consuming strategy of targeting individual consumers, rather than using strategies to take down the piracy sites, make it difficult to find them, or offer less expensive legal alternatives so consumers can buy legal copies conveniently and at a reasonable price. This is not to deny that piracy is an economic problem, because it definitely has resulted in declines in sales and the loss of hundreds of thousands of jobs—an estimated 750,000 in the entertainment industry, including books, music, and films, in recent years. But instead, as John Aziz suggests in a July 2014 article in The Week, since one can’t eliminate the pirates, the entertainment industry has “moved on to another, smarter proposition,” based on offering a service that is “better quality, more reliable, and more accessible.” He writes:

  “Internet piracy is a messy game—files are often incorrectly labeled, sound quality can be poor, download speeds can be unreliable, and those who choose to pirate risk downloading spyware and malware. Services like Spotify, iTunes, Rdio, Beats Music, Netflix, Hulu, Sony, and Amazon are offering shed-loads of high-quality legal entertainment for a reasonable price that—importantly—goes to compensate the creators. These services are already making big inroads, and piracy is falling as a result.”166

  It is an approach that is gaining support worldwide, based on the notion that the pirates on the Internet will always be a step ahead as they find ways around the latest technological steps to defeat piracy. So the solution to piracy will include “better pricing and availability,” which will have an effect on the market, while educational campaigns will help “to sway some of those sitting on the fence” to not pirate copyrighted material. And here the ISPs can help with a “notice-and-notice scheme to warn and educate consumers.”167

  And so the war on piracy goes on, although it has most recently seemed to shift from a focus on suing the pirates or pursuing them through law enforcement action to finding ways to work with them. Examples include using the pirated materials as a kind of marketing tool to increase visibility and sell other materials, or work around them by creating more attractive ways to entice buyers through lower pricing, convenience, and quality materials so they are less likely to seek this material from pirates.

  So what should you do if you discover your own work has been pirated? There is a chapter in the final section on what you can do. The following sections provide a more detailed description of the protections provided by the copyright law and what law enforcement has done in the past to fight back against the pirates.

  PART III

  The Copyright Law and Infringement

  CHAPTER 13

  The Remedies for Infringement under US Copyright Law

  SUPPOSE YOU DO HAVE A book or other material that has been pirated. What exactly are your rights? Generally, assuming you have registered a copyright that permits statutory damages up to $150,000—not just damages you can prove—the basic remedy is to send a takedown notice to the owner of the website. If they do not respond, the notice goes to the service hosting the website, or to both at the same time. Normally, if the website owner doesn’t take down the copyrighted material, the website service provider will, and sometimes that will mean the whole website will come down. And usually that will be the end of it, unless you choose to take some legal action for damages and statutory penalties.

  So far, these legal actions have mainly been taken by the larger publishers, individually or as part of a collective of publishers. But these actions are very time consuming and expensive, and then there may be appeals and difficulties in collecting the judgment. So a growing trend for writers and publishers, especially the smaller independents, is to give up on taking any legal action and send out takedown notices themselves, through piracy protection services or through others acting on their behalf, to get the infringing material removed from websites and search engines, or find ways to benefit from what the pirates are doing to promote one’s own website and books and sell other materials.

  Still, it helps to understand the different laws that can be used like weapons to combat the pirates, accomplices, and supporters. Then, you can use that in your strategy in deciding what to do, as well as how to use the various tools to protect your work. It also helps to know what lawyers and government officials might do to help you figure out the legal strategies and criminal codes they can use to fight the battle. Perhaps individually you may not be able to do much beyond sending out takedown notices or working with a privacy protection service to do that for you. But if collectively enough publishers or writers get together after they have had their work pirated by the same pirates or group of pirates, they might take some legal action—or they might interest law enforcement in taking some action against the pirates, too.

  The following chapters deal with understanding the major copyright laws to help you decide how these laws protect you and what to do when you discover an infringement and want to get the infringer to stop doing it—or want to pursue damages for the infringement individually or part of a group lawsuit. A copy of a sample takedown notice is included in the Appendix.

  The Remedies for Copyright Infringement

  One of the most basic weapons is the US Copyright Law 17 USC #504, which provides remedies for infringement based on actual damages and profits or statutory damages. As provided in the law, if you own the copyright, you can choose which option, though you need to have already registered the copyright within a three-month window of publication to opt for statutory damages.

  To recover actual damages and profits, you have to show what damages you suffered due to the infringement, along with the infringer’s profits, based on his or her gross revenue, while the infringer has to show any deductible expenses and what profits came from sources other than the copyrighted work.

  In the case of statutory damages, you can recover between $750 to $30,000, based on what the court considers just, from one or more infringers who are liable jointly and severally for each work—a common approach applied to those downloading the work. Should the infringement be considered willful, as in the case of the site owners or those providing multiple uploads, the court can increase the damages up to $150,000. It is up to the violator to show that the infringement was not committed willf
ully, since it is a rebuttable presumption that a violation was willful.

  The US Copyright Code with Remedies for Infringement

  Following is the exact language of the law in Title 17, #504 of the US Copyright Law, as provided by the US Copyright Office (http://www.copyright.gov/title17/92chap5.html). You can include a reference to this code to strengthen your argument in asking violators to remove your copyrighted material posted online without your permission, in seeking a settlement from them, or in participating in litigation to claim damages and/or profits.

  § 504. Remedies for infringement: Damages and profits

  a. IN GENERAL. — EXCEPT as otherwise provided by this title, an infringer of copyright is liable for either —

  1. the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or

  2. statutory damages, as provided by subsection (c).

  b. ACTUAL DAMAGES AND PROFITS. — The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages. In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.

  c. STATUTORY DAMAGES. —

  1. Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.

  2. In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000. In a case where the infringer sustains the burden of proving, and the court finds, that such infringer was not aware and had no reason to believe that his or her acts constituted an infringement of copyright, the court in its discretion may reduce the award of statutory damages to a sum of not less than $200. The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was: (i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords; or (ii) a public broadcasting entity which or a person who, as a regular part of the nonprofit activities of a public broadcasting entity (as defined in section 118(f)) infringed by performing a published nondramatic literary work or by reproducing a transmission program embodying a performance of such a work.

  3. A. In a case of infringement, it shall be a rebuttable presumption that the infringement was committed willfully for purposes of determining relief if the violator, or a person acting in concert with the violator, knowingly provided or knowingly caused to be provided materially false contact information to a domain name registrar, domain name registry, or other domain name registration authority in registering, maintaining, or renewing a domain name used in connection with the infringement.

  B. Nothing in this paragraph limits what may be considered willful infringement under this subsection.

  C. For purposes of this paragraph, the term “domain name” has the meaning given that term in section 45 of the Act entitled “An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes” approved July 5, 1946 (commonly referred to as the “Trademark Act of 1946”; 15 U.S.C. 1127).

  d. ADDITIONAL DAMAGES IN CERTAIN CASES. — In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110(5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.

  CHAPTER 14

  The Limitations on Liability for Service Providers

  BESIDES US COPYRIGHT LAW: 17 USC #504, which provides remedies for infringement based on actual damages and profits or statutory damages, other laws provide exceptions from liability for service providers. By knowing about these laws, you can both better know the steps for notifying the infringers yourself, and know what to expect in response to a takedown notice when piracy protection services or others act on your behalf.

  The key provisions in the US Copyright Code that carve out this exception are #512 (a) (b) and (c), which provide limitations of liability for certain online providers who are not the actual infringers and don’t know about the infringement. More specifically, under #512(a), those who transmit, route, or provide connections for the infringing material are excluded, if the transmission was initiated by or at the direction of someone other than the service provider, if the transmission occurred through an automatic technical process without any selection or modification of the content, or if the transmitter made no copy of the material beyond the time needed to transmit it.

  Under #512(b), a service provider has no liability for storing any material in the system if someone besides the service provider makes this material available online and the storage occurs through an automatic technical process to make the material available to those using the system. Then, too, under #512(c) the service provider isn’t liable if he or she is unaware that the material on the system or network is infringing and, once aware of the infringement, quickly responds to remove or disable any access to material which is claimed to be infringing, after receiving a notification of this claimed infringement.

  In other words, a website hosting service or communications provider like Hostcentric, Yahoo, or Google won’t be liable for a website hosted or listed by them, when they are unaware that the website is posting copyrighted material, unless they are notified about the claim of infringement. Then, their responsibility is to remove the material or disable access to it, After that they will commonly notify the alleged infringer about the removal or denial of access, so the alleged infringer has an opportunity to file a counterclaim that the infringement claim is a mistake or a misidentification, though counterclaims are unlikely when you own the material.

  Moreover, to avoid liability, a service provider has to have a designated agent to receive notifications of a claimed infringement and must provide this information through its service, such as on its website where the public can readily see it. In addition, it has to provide the Copyright Office with the agent’s name, address, phone number, email address, and any other contact information required by the Register of Copyrights. In turn, the Register of Copyrights keeps a current directory of agents available, including on the Internet, for the public to inspect.

  Following is the law as stated in Title 17, Chapter 512, (a)(b) and (c) of the US Copyright Law (http://www.copyright.gov/title17/92chap5.html). You might include a reference to this code in your initial letter to a service provider to strengthen your claim. Then, if they don’t immediately respond to take down or remove access, they will become liable, and you can use their failure to act in seeking a settlement from them or in including them in litigation to claim
damages and/or profits.

  § 512. Limitations on liability relating to material online

  a. TRANSITORY DIGITAL NETWORK COMMUNICATIONS. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if —

  1. the transmission of the material was initiated by or at the direction of a person other than the service provider;

  2. the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

  3. the service provider does not select the recipients of the material except as an automatic response to the request of another person;

  4. no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

  5. the material is transmitted through the system or network without modification of its content.

  b. SYSTEM CACHING. —

  1. LIMITATION ON LIABILITY. — A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the intermediate and temporary storage of material on a system or network controlled or operated by or for the service provider in a case in which —