Patriots or Pirates? Part 4

Straight From the Horse’s Mouth

This is my fourth and likely final installment on the issue of e-book piracy.  You might ask why I am devoting so much time to this subject, especially since I haven’t blogged very much in the past.  Well the reason is, when I feel very strongly about a subject, I write.  That’s what writers do.  I felt the need to address this subject is such a way as to put a lot of information and opinion in one place, to present the case in a logical manner.  Do I think it will change the minds of pirates?  No.  But it might educate people that don’t really know or haven’t been exposed to both sides of the issue.

So in the first installment (which at the time was going to be the only one), I took eight specific arguments that were made by supporters of a particular site, tuebl.com (The Ultimate E-Book Library), that I thought were indicative of the general arguments in support of these types of file sharing and distribution sites.  I tried to address each one individually.

http://aaronspeca.blogspot.com/2012/07/patriots-or-pirates.html

About two weeks later, I decided to address in detail an argument someone brought forward in the comments to that initial post, that there was definite evidence that piracy helped the industries that were being pirated.  I brought forward some counter-arguments in some detail, and devoted the post to that specific contention (ignoring the question of whether file sharing was legal or not).

http://aaronspeca.blogspot.com/2012/08/patriots-or-pirates-part-2.html

In the third installment, I discussed the very unfortunate situation of the shutting down of LendInk, a legitimate service that matched up potential e-book lenders with potential e-book borrowers, but did so through established e-book lending programs at various web sites, programs that had been agreed to between publishers and distributors.  My hope here was to provide a lesson on something that should not have happened, to help people see to look before they leap into a campaign against something that turned out to be completely above-board.

http://aaronspeca.blogspot.com/2012/08/patriots-or-pirates-part-3.html

So today, I want to turn back to actual file sharing sites, and I did have to select one in particular to talk about in this vein because quite frankly it is the one most on the radar screen in the circles I am in.  Thus, we turn attention back towards tuebl.com, and in particular this time not to statements made by supporters, but to the words used by the site owner(s) themselves.  As before, I’m going to speak about this point by point.  I encourage everyone, even after reading this, to do their own digging and use their own reasoning in considering these issues.

#1:  Copyright Law

On the front page of tuebl.com, the owner makes this statement:  “TUEBL is under financial blockade by people that don’t understand basic copyright laws in the United States and Canada.”

First of all, financial blockade does not seem to be a correct characterization.  I don’t have any first-hand knowledge of the mechanics of how this worked, but as far as I can tell, Paypal decided to stop working with this site by their own determination.  Were they told about the site’s activities by authors?  Yes, but it was Paypal’s decision to take the account away, it was not a direct action by some mysterious blockading group.

Second, the question of understanding copyright law.  Authors and publishers live copyright law every day.  No, they aren’t necessarily lawyers, but they need to have an understanding of the basics.  I’m not a lawyer either, but I can look things up and read.  Here’s how US copyright law defines copyright infringement:

“Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 or of the author as provided in section 106A(a), or who imports copies or phonorecords into the United States in violation of section 602, is an infringer of the copyright or right of the author, as the case may be.”

The “exclusive rights” of the copyright owner as defined in section 106 include the sole right “to reproduce the copyrighted works in copies or phonorecords” or to authorize said reproduction (usually through contract with a publisher).  They also include the sole right “to display the copyrighted work publicly” or to authorize such public display.

The Canadian Copyright Act states the following as a definition of copyright infringement:

“It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.”

These “sole rights” include the sole right “to produce, reproduce, perform or publish any translation of the work.”  Again, these rights can only be transferred (authorized) through a signed contract providing those rights to another party such as a publisher.

Every time an e-book is uploaded to the site, it creates a reproduced copy of the work.  This is because the uploader still maintains possession of their (presumed paid for, but maybe not) copy of the work.  And the same is true of the download, this is also creating a new unauthorized reproduction of the work.  These copies are made without the authorization of the copyright holder (I will qualify – in a majority of cases).  This would appear to completely fall under the definition of copyright infringement.

Sources:

http://www.copyright.gov/

http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/home

#2: Call to support authors

TUEBL.com puts this statement on every page where they offer the book for free download.

“Like many, we believe that culture should be free and we give you access to thousands of books even if you can’t afford to pay for them.” ... “Whatever you choose, remember that authors have spent days, sometimes months, for your pleasure.  Support them if you like what they do.”

I wish I could go get stuff for free just because I can’t afford them, or I think they cost too much, like what is being stated in the first quote.  I mean, I think gasoline costs too much, but does that justify me filling up my tank then driving off without paying?  Not being able to afford something is not a valid excuse for basically stealing it, especially when you are talking about something that is not a vital necessity.

The call to support authors, although noble, is counting on an altruistic nature that I don’t believe exists in a majority of people.  Although a few people probably would be willing to pay for a book they already have, how many actually will?  Call me cynical if you want, but to me, this is a weak attempt to deflect from the fact that these books are indeed being distributed illegally.  And it IS illegal distribution, EVEN IF the downloader later decides to purchase the exact same book through legal means.

And I just have to say … “authors have spent days, sometimes months” … that is purely and simply an insult to the months and sometimes YEARS authors have put into their work.

#3:  The DMCA Notice

DMCA stands for Digital Millenium Copyright Act, and the DCMA notice is a legal document submitted to a web site to remove copyrighted content.  Yes, TUEBL.com does have a procedure for a copyright holder to submit a DMCA notice to take down a book uploaded without the consent of the copyright holder.  (I am told anecdotally that this site’s methods are significantly more arduous than a typical takedown notice.)

This is a statement made by the site owner when asked in a forum why some books had been removed from the site. "Books are not 'mysteriously' being removed.  We are removing them with DMCA requests ... though we have no method of filtering out books if they are reuploaded.  So if someone reuploads them, then you will see them back on the site again.  It's a shame, eh?"

The thinly veiled sarcasm in this statement is obvious (“It’s a shame, eh?”).  Yes, they comply with DMCA notices, but hey, nothing can prevent it from being uploaded again, right?  Then the author would have to submit another DMCA notice once they determine the book once again exists on the site.

Youtube has figured out how to filter their site for music and video that has had legitimate DMCA notices files.  (I know because I sometimes set my daughter’s soccer videos to music, that I purchased by the way, and when I upload it the video is sometimes blocked immediately because the song in particular has had a DMCA notice filed.)  This site chooses not to put forth the effort to do that.

#4: Donations to Charity

TUEBL.com claims to donate to charity, but is unwilling to provide any transparency to whom and how much. .  “We can't actually say what charities they are though, because they may be obligated to give the money back.” … “it's also very difficult, because the funds are transferred through secondary accounts and come in through multiple sources... so actually keeping track of it all is difficult.”

I haven’t found a case yet where a charity was even discussed being forced to return a donation outside of either bankruptcy of the donor, or illegal activity on the part of either the donor or the charity.  So if everything’s on the up and up, why hide the charities they are donating to?

Giving them a big benefit of the doubt, perhaps they are somehow under the impression that there is some other reason why they think the charitable organizations would have to return the money.  If they are donating, they may know what they are doing is not legal.

#5:  The Great Assumption

For whatever reason, this one really gets under my skin, so much so I’m showing three examples of it.

"All content uploaded to TUEBL is assumed to be legally uploaded"

"Users (we presume copyright holders) are uploading them."

"We dispute that we 'know' anything and believe that copyright holders are uploading the content.  However, we also dispute losses." 

The basic gist of this argument is, paraphrased, we assume that the copyright owners are uploading the over 19,000 books we have on our site.

This one is enough to make my head explode.  Really? Because I’m sure Sherrilyn Kenyon took time out while she was preparing for her book tour last week, to say “Oh, I almost forgot to upload Time Untime onto the E-Book Library site so people could get it for free.  Never mind that it would be a total violation of the contract I have with my publisher to do so.  Let me do that real quick before I get on the road to Memphis.”

Time Untime was released on August 7, and was available on TUEBL.com as early as August 9.  (This particular book has been taken down, but most of Sherrilyn Kenyon’s other books are still available.)

James Patterson’s latest release “Nevermore”, the final book of the Maximum Ride series, was released on August 6 and was also available as early as August 9.  This book is still up as of today.

It boggles the mind that there could be any reasonable thought that these and other “big name” authors have uploaded these documents themselves – JK Rowling, JR Ward, Charlaine Harris, Christine Feehan, and Tom Clancy just to name a few.  And by copyright law, they are the only people that would have the right to do so or to authorize it!  TUEBL.com knows this which is why they parrot this assumption over and over and over again, to try and feign ignorance of what is going on.  How can any reasonable person genuinely believe this to be the case?

And just read their own response to the Frequently Asked Question, “Can I add a book?” 

"You bet.  The more you add the more it helps others and hopefully helps you get the books you need.  Click here to submit a book.  Please fill out as much information as possible."

So on the one hand they are assuming that only copyright holders are uploading books, on the other they are telling their users how to do it and are encouraging it.

I do know that there are a few authors who have decided to do this sort of thing, because they feel it is the right thing to do.  I would say to those authors, don’t support a site that takes that choice away from the rest of us.  If they are self-published that is their right, but it is also their right to do so using legitimate methods such as free books on Amazon, or 100% off coupons on a site like Smashwords, or allow lending of their books through Amazon or Barnes & Noble.  If they are actually published through a company, I’m no expert, but it would seem to me to be a violation of an author’s publishing contract to upload their book onto a site like this! 

To address the issue of photos, music, etc., on sites like Youtube and Facebook.  As I stated, Youtube already does filtering of videos and music.  Although I agree there may be some legal equivalence to the activities taking place on those sites, they are NOT sites dedicated to the sole purpose of illegally creating and distributing copies of copyrighted works.  This is file sharing sites’ business model.

Why do I even care?

I’m not a starving author, nor am I reliant on that income in any way.  (You might be reading this and thinking, damn good thing!)  I have a good full-time job that I enjoy, and that keeps me and my family secure. 

But having been published, and through that experience meeting many fellow authors who ARE reliant on the income produced through their work, or who are struggling to make it in this business to get out of some bad situation they are in either professionally or personally, I do feel very strongly about this.

When you cut through all the rhetoric and statistics and legal arguments, it really comes down to this one truth that cannot be denied:

If you download a book from a file sharing site for free, that is a book that you are not buying, and no money is getting to the originator of that work.

These are people. Real people.  They are not sitting in an ivory tower somewhere counting their gold coins and rubbing their hands together in joy at all the people they’ve conned out of their money.  Authors work VERY HARD to put together stories FOR YOU, the fans.  Most are just looking for enough to make a living, or to supplement their living.  Really, only a very few break out and make it huge.  And you know what?  They still work hard.  Imagine if someone took things you worked hard to produce, that you are passionate about, that you earn money off, and didn’t pay for it, and you got nothing in return.  Put yourself in their place.  “Seek first to understand.”

My goal is not to obliterate piracy, that’s not realistic.  It’s not to get the owners of these sites to change their ways, that would be futile.  My goal in writing these pieces is to get you, the average person, thinking about it, rather than blindly grabbing at all the “free stuff” without considering the consequences.  To get you to open your mind and really listen and think about what you are being told.  I hope you will.  And if you consider this side, and consider the other side, and still feel like I’m wrong, then so be it.  I’m just me, and I can only tell you what I think I know.  It’s your choice.

I’ve said about everything I have to say on this subject.  I welcome and invite your comments, and really thank you for reading this and hopefully the other three installments.