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Wednesday News and Deals: HarperCollins Sues OpenRoad for Infringement

News

HarperCollins has sued Open Road Media for the publication of “Julie of the Wolves”.   According to the petition, HarperCollins alleges that Open Road has willfully infringed on HC’s contract with Jean Craighead George which included the provision HC’s “exclusive right to publish George’s children’s novel Julie of the Wolves ‘in book form,’ including explicitly via ‘computer, computer-stored, mechanical or other means now known or hereafter invented.”

HC argues that the ebook was forseeable based on the technology that existed at the time of the contract.  Specifically they point to creation of Project Gutenberg in 1971 and digital storage and retrieval systems in use in the 1950s.  Digital books are no different than print books, says HC.

Other notes of interest is that HC employs 750 editors and spent more than $70 million in promotion of its books in fiscal year 2011.  It had 166 titles on the NYTimes list with 18 of them achieving number 1 status.

PDF of Petition here.

As Richard Curtis notes, this is not dissimilar to the argument that Random House made which was unsuccessful in its case against Rosetta (a company owned by agent Curtis).  However, the contract language of HarperCollins appears to go beyond the terms “in book form” and includes explicit reference to “computer, computer-stored, mechanical” forms of the book.  The contract was not attached, so I’m unclear where the computer, computer-stored, etc. language falls.

******

In the Sourcebooks v. Clenney case, Sourcebooks filed a motion to dismiss the counterclaims.  In support of the motion to dismiss, Sourcebooks attached a FedEx envelope which showed that a royalty statement and payment were delivered to Clenney but that Clenney rejected the receipt of the envelope. At the status conference, the parties discussed settlement and a settlement conference is set for February 2, 2012.

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The NYTimes article on publishers and digital lending clarifies the problems publishers have. It’s not this nebulous security issue that Penguin tried to pawn off on the public, but it’s this idea that there is not enough friction in the digital lending process such that it presents a lost revenue stream:

And print copies don’t last forever; eventually, the ones that are much in demand will have to be replaced. “Selling one copy that could be lent out an infinite number of times with no friction is not a sustainable business model for us,” Ms. Thomas says. Hachette stopped making its e-books available to libraries in 2009.

and

Explaining Simon & Schuster’s policy — it has never made its e-books available to libraries — Elinor Hirschhorn, executive vice president and chief digital officer, says, “We’re concerned that authors and publishers are made whole by library e-lending and that they aren’t losing sales that they might have made in another channel.”

Essentially this confirms what Sarah Glassmeyer wrote back in April 2011  that if each patron bought one more ebook than they ordinarily do the market loss of libraries would be covered.

According to Bowker, however, library users are some of the biggest book buyers:

Miller says LJ editors have been amazed by the strength of the findings so far—including the degree to which libraries are boosting book sales. “Our data show that over 50% of all library users report purchasing books by an author they were introduced to in the library,” Miller noted. “This debunks the myth that when a library buys a book the publisher loses future sales. Instead, it confirms that the public library does not only incubate and support literacy, as is well understood in our culture, but it is an active partner with the publishing industry in building the book market, not to mention the burgeoning e-book market.”

******

Louis CK decided to produce his own video “Live at the Beacon Theater” and sold it DRM free for $5.00.  Louis CK announced that his revenue reached $1 million as of December 21, 2011.  He netted about $250,000 after he paid everyone who worked on the project with  him along with a sizeable charitable donation.

Speaking of piracy and DRM, Lionhead said that it probably loses more money to the used video game market than it does to piracy.

West said that any sales Lionhead make of Fable III on PC this Friday and beyond will be “a bonus”.

“For us it’s probably a no-lose even with piracy as it is,” shrugged West. “But, as I say, second-hand sales cost us more in the long-run than piracy these days.”

******

With the growth of ereaders, travelers are chafing against the rules that require all electronic devices be turned off prior to take off and landing.  Nick Bilton of the NYTimes has looked into whether these regulations are necessary, particularly now that iPads are being allowed in the cockpit. Portable voice recorders, hearing aids, heart pacemakers and electric shavers are allowed to be used on take off and landing and according to the tests, the voice recorders emit as much as or more electronic emissions than a Kindle.

******

GoDaddy was a vocal supporter of SOPA. It helped draft the legislation and was even exempt from the SOPA restrictions. Yep, GoDaddy was exempt.  When GoDaddy’s support of SOPA gained prominence on the web, domain owners began transferring their business away.  GoDaddy attempted to halt the exodus by publicly reversing its stance and deleting all the blog posts reciting their support.  Regardless, people are still moving away.

Speaking of SOPA and piracy, ironically IP addresses associated with RIAA were connected to illegal pirating of television shows.  RIAA’s response? It wasn’t them but someone illegally using their network.

******

I’m not sure where the statistics have come from but this report says 13.4% of all purchases over the holiday were made on an iOS device.  Amazon is trying to capture some of that online revenue through the Fire notes the tech reporter, Mike Elgan.

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Keishon has a fantastic post about how writers who became successful writing a certain type of work change their style in response to the broadening audience.

The crux of my problem: I dislike when good writers are discovered for their originality and then when they are introduced to a new audience they no longer provide that something special that made them a hit in the first place. I’ve never liked writers writing to a market but that’s the business of publishing.

Deals

First up are some randomly selected freebies:

  • Awakening Mercy by Angela Benson * $0 * AMZ | BN | S | K
  • Fatal Embrace by Aris Whittier * $0 * AMZ | BN | S | K
  • Bridleton by Becky Barker * $0 * AMZ | BN | S | K
  • Triple Threat by Jennifer LaBreque * $0 * AMZ | BN | S | K
  • Faith by Lori Copeland * $0 * AMZ | BN | S | K
  • Fairytale by Maggie Shayne * $0 * AMZ | BN | S | K
  • The Finding by Nicky Charles * $0 * AMZ | BN | S | K
  • The Keeping by Nicky Charles * $0 * AMZ | BN | S | K
  • The Mating by Nicky Charles * $0 * AMZ | BN | S | K
  • Sheltering Hearts by Robyn Carr * $0 * AMZ | BN | S | K
  • A Chance in Time by Ruth Ann Nordin * $0 * AMZ | BN | S | K
  • A Husband for Margaret by Ruth Ann Nordin * $0 * AMZ | BN | S | K
  • A Texan’s Promise by Shelley Gray * $0 * AMZ | BN | S | K
  • Dangerous Grounds by Shelli Stevens * $0 * AMZ | BN | S | K
  • Baby, I’m Yours by Stephanie Bond * $0 * AMZ | BN | S | K

Here are some coupon codes. I even included a print one.

  • Save $5 when you spend $10 or more on your order using the CARSP1011 coupon code until January 4. Good in U.S. and Canada.
  • $4 off ebooks with coupon code SPEND4E11 at Harlequin. Readers report that the coupon can be used more than once.  Must spend at least $4.00 and it is good until 1/31/12.
  • There is free shipping at Harlequin for print books until December 31, 2011.  I’m not sure if you can combine it with SAVE10DOLLARS which requires you to spend at least $30 or more and get $10 OFF your order on Harlequin Print Books (Expires 03/31/12).
Other possible deals
  • Knitting Under the Influence by Claire LaZebnik * $1.99 * AMZ | BN | S | K
  • Mystic River with A Bonus Excerpt by Dennis Lehane * $1.99 * AMZ | BN | S | K
  • Samantha Moon: All Four Novels by J.R. Rain * $1.99 * AMZ | BN | S | K
  • Justice by Karen Robards * $1.99 * AMZ | BN | S | K
  • Dragon Keeper by Robin Hobb * $1.99 * AMZ | BN | S | K
  • Yours Until Dawn by Teresa Medeiros * $1.99 * AMZ | BN | S | K
  • The Orchard by Theresa Weir * $1.99 * AMZ | BN | S | K *Recommended by Janet. Review here*
  • The Black Prism by Brent Weeks * $2.99 * AMZ | BN | S | K
  • Bootscootin’ and Cozy Cash Mysteries Boxed Se by D. D. Scott * $2.99 * AMZ | BN | S | K
  • Red-Headed Stepchild by Jaye Wells * $2.99 * AMZ | BN | S | K

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

56 Comments

  1. Gwen Hayes
    Dec 28, 2011 @ 10:51:39

    Who uses an electric shaver during takeoff and landing?

  2. OctopusGallery
    Dec 28, 2011 @ 10:57:46

    The way I understand it, the bit about “emissions” is just a smoke screen. The real reason your supposed to have that stuff stowed is because then you aren’t trying to take it with you in the event of an emergency evacuation. Apparently people will try and grab their stuff instead of getting off the plane and if it’s not easily accessible, it’s easier to get people to give up and leave.

  3. Liz Talley
    Dec 28, 2011 @ 11:06:01

    Lots of stuff in this post, but I do want to comment on libraries being a breeding ground for more book buying. Often at the libraries I frequent, there is only a small sampling of an author’s books, so if I read an author I loved, I first looked for his/her books on the library shelf. If they had no more or couldn’t get them from interlibrary loan, I’d go buy them. So I definitely get that library sales are important for future consumer sales. Many of times I’ve been hooked on an author from a library loan.

  4. Meri
    Dec 28, 2011 @ 12:02:50

    “With the growth of ereaders, travelers are chafing against the rules that require all electronic devices be turned off prior to take off and landing. Nick Bilton of the NYTimes has looked into whether these regulations are necessary, particularly now that iPads are being allowed in the cockpit. Portable voice recorders, hearing aids, heart pacemakers and electric shavers are allowed to be used on take off and landing and according to the tests, the voice recorders emit as much as or more electronic emissions than a Kindle.”

    This is something that comes up regularly on Salon’s Ask The Pilot. Here’s the most recent column on the topic: http://bit.ly/ts8XF5

  5. Jenny
    Dec 28, 2011 @ 12:26:42

    Airlines don’t have to worry about MY electronic devices being on during take off and landing. I’m too busy squeezing the armrests and praying!

    And really, is that so much to ask for? Is there’s even the slightest chance it might interfere with the plane’s electronics, that’s enough reason for me to be happily compliant.

  6. Lil
    Dec 28, 2011 @ 13:11:35

    My book buying has financial limits. I probably buy no more than 40 or 50 paperbacks over the course of a year, so most of my reading matter is provided by the library. But the library is not cutting into the publishers’ and authors’ profits, because I have never bought a book by an author whose works I have not previously read courtesy my public library. A significant number of books that I have bought are books that I had already read and liked so much that I want my own copy.

    The loss of my custom is probably not going to be significant to those publishers who refuse to let their ebooks be lent by libraries. For all I know, those publishers may not be putting out anything I would want to read anyway—I have no idea who publishes what. The big loss is going to be mine, so I regret any decision that limits what is available via libraries.

  7. erinf1
    Dec 28, 2011 @ 13:37:41

    Thanks for a wonderful post. Very thought provoking. I also appreciate all the “deals” :)

  8. SarahF
    Dec 28, 2011 @ 14:51:42

    @OctopusGallery: I heard that’s it about having things flying around the cabin if take-offs and landings go bad. Books…who cares? iPads or computers? That’d hurt if there’s a big bump somewhere.

  9. OctopusGallery
    Dec 28, 2011 @ 15:19:46

    @SarahF: I’d rather get a whack from the padded case of my ereader than someone’s hardcover. And the NYT article says right at the begining that “The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence.” It’s probably one of those things that will keep being discussed until either people raise enough fuss to kill the rule or the FAA just admits it’s arbitrary and people roll with it.

    I’m perfectly fine with cellphones never ever EVER being approved though. It’s obnoxious enough to listen to people around me on phones in the subway where I can change trains, let alone a cross ocean flight.

  10. Estara
    Dec 28, 2011 @ 15:20:37

    Deals: Sherwood Smith and Dave Trowbridge have just released the revised edition of the second Exordium space opera book – Ruler of Naught – and they are now offering the first book in the series – The Phoenix in Flight – for a limited time at 0.99 at the Book View Cafe store.
    http://www.bookviewcafe.com/index.php/Dave-Trowbridge/eBooks/

  11. Liz
    Dec 28, 2011 @ 15:22:43

    @Octopus- That would actually make some sense. But the rule isn’t that you have to have it stowed, just that you can’t have the power on. When there’s a rough take off some people hold onto arm rests, and some genuflect to their iPads ;) (Actually saw that last one flying into Newark last week.)

    I second @Liz, as I think many readers do. The results of this study are, to me, further evidence the leaders at the big publishing companies slept through their business school lectures. Setting policies towards libraries without doing appropriate (or any) market research is the antithesis of a good business decision (and common sense).

  12. OctopusGallery
    Dec 28, 2011 @ 15:36:10

    @Liz: Interesting! I swear last time I flew it was off and stowed, but I don’t fly very often. I always want to bring back too much wine for flying to be practical. ;)

  13. eggs
    Dec 28, 2011 @ 16:42:28

    I used to autobuy Karen Robards and then, for no particular reason, stopped buying her. Just too many good books out there to choose from, I guess. So, in a total Scalzidick move, I will tell everybody that I clicked on the link, saw that I could buy the Justice hardcover for $10.00 or the ebook for $17.30, and decided to leave her on my authors-I-don’t-buy-anymore list!

  14. Rebecca (Another One)
    Dec 28, 2011 @ 16:46:01

    @Jenny: I want to read during takeoff and landing, so I can distract myself.

  15. Isobel Carr
    Dec 28, 2011 @ 16:52:12

    I’ve always thought of sales lost to piracy as equivalent to sales lost to the used paper market. In fact, I bet there are far more readers who regularly buy used copies off Amazon (often for pennies) then there are readers who regularly pirate. *shrug* Thinking of it this way keeps me sane and let’s me not put any energy into freaking out about something I can’t control or stop.

  16. De
    Dec 28, 2011 @ 18:32:31

    About “And print copies don’t last forever; eventually, the ones that are much in demand will have to be replaced.”

    Yes, that’s true. But not every 26 patrons. I’ve got a Larry McMurtry Terms of Endearment on the shelf that’s been checked out 93 times. I’ve got a Heyer paperback, Lady of Quality, that’s been out 39 times. A massmarket paperback at 39!

    I could keep looking up high circ books from Penguin imprints, but I’m going to address the envelopes for the library’s thank you notes instead. It’s less stressful.

  17. jess
    Dec 29, 2011 @ 01:41:30

    @Isobel Carr: Speaking entirely from personal experience, piracy can lead to future sales for an author the same way library borrowing or buying from a used bookstore can. As a starving student, the only thing that would ever induce me to actually spend the cover price on an unread author would be if I was trapped in an airport with nothing to read, i.e. from sheer desperation (which last happened in 2008). Otherwise I only purchase authors whose work I’ve enjoyed previously, from a library, the dollar paperbacks at my local used bookstore, or pirated online. In fact, the only six books I bought this year (and all at full price) were from authors whose work I fell in love with after first downloading illegally.

  18. Merrian
    Dec 29, 2011 @ 01:43:38

    @Estara: Thanks for the heads up; happily bought and loaded on to my trusty ereader

  19. hapax
    Dec 29, 2011 @ 10:22:14

    Speaking entirely from personal experience, piracy can lead to future sales for an author the same way library borrowing or buying from a used bookstore can.

    @jess — I’m sure that you’re a moral and thoughtful person, so you didn’t mean to make a statement that reads (to me) exactly like: “Robbing jewelry stores can lead to future sales for a designer the same way that borrowing a necklace from my sister or buying from estate auctions can.”

    One of these things is not like the others.

    I am trying very hard to imagine a system of ethics that justifies a present-day theft by the possibility of future fair treatment of the victim.

  20. Ridley
    Dec 29, 2011 @ 12:20:53

    @hapax: Not liking the sound of it doesn’t make it untrue. Numerous studies have linked illegal downloading with increased sales. Right or wrong doesn’t have anything to do with it.

    Besides, cute though it is when authors trot it out, copyright infringement (what you call piracy) and physical theft aren’t comparable. In the former, there’s no measurable loss. You can assume each download represents a lost sale, but you don’t know how many of those downloads are due only to it being available. It’s also still available for sale, no matter how many times it’s downloaded. In the latter you have an easily measurable loss. The one and only item is gone. You can’t sell what you don’t have. You’re out the cost of materials and labor.

  21. Author on Vacation
    Dec 29, 2011 @ 16:43:52

    @jess:

    In fact, the only six books I bought this year (and all at full price) were from authors whose work I fell in love with after first downloading illegally.

    I’m sure the six authors you purchased appreciate the sale.

    What about the authors you trespassed against and did not purchase?

  22. Author on Vacation
    Dec 29, 2011 @ 16:49:50

    @Ridley:

    Why waste time arguing about whether copyright infringement = theft?

    I’ll just stick to copyright infringement = crime

  23. Estara
    Dec 29, 2011 @ 19:08:46

    @Merrian: wohoo, it was a wild guess that someone would find interest in that particular deal in the DA readership, but it’s nice to help a fellow sf&f fan spend their book money ^^

  24. hapax
    Dec 29, 2011 @ 19:13:54

    @Ridley — I’m not your priest or your probation officer. Justify theft to yourself anyway you please. You’re hardly likely to come up with anything new.

    Just don’t pretend that it’s a *favor* to the victims. That is both disingenuous and disrespectful.

  25. jess
    Dec 29, 2011 @ 19:50:59

    @Author on Vacation: @hapax: I don’t think an argument about the ethics/morality/legality of piracy is entirely useful here. However I think we can all agree that piracy DOES happen (and will likely continue to for the foreseeable future, whatever ethics and laws are involved), and that people DO worry about how piracy negatively impacts sales. Like Ridley, I’ve heard people mention studies that show piracy can positively impact sales, and I just wanted to offer that that has been my actual experience.

  26. Author on Vacation
    Dec 29, 2011 @ 20:08:05

    @jess:

    I don’t think an argument about the ethics/morality/legality of piracy is entirely useful here.

    Of course you don’t. No one involved in criminal activity wants to examine his criminal habits too closely, I guess. Have a nice day.

  27. Junne
    Dec 30, 2011 @ 03:51:24

    @Ridley:

    I would like links to these “numerous studies”, thanks.

  28. Sunita
    Dec 30, 2011 @ 06:48:06

    @Junne: This article was discussed a few months ago here at Dear Author. Michael Smith at Carnegie Mellon has done research that finds that piracy leads to increased sales. There is also this older article which shows differential impacts on artists (well-known artists’ sales are reduced by piracy in the study, but lesser-known ones have increased sales).

  29. Stumbling Over Chaos :: Linkity rings out the old year
    Dec 30, 2011 @ 07:49:48

    […] Book and publishing news from Dear Author. […]

  30. hapax
    Dec 30, 2011 @ 10:01:58

    @Sunita — the Michael Smith study is not currently available, but the other two do not say what you say they do.

    The first proposes a theoretical model (with a hella lot of untested assumptions) for music (not books) and the removal of DRM (not under discussion here) in which increased piracy MIGHT lead to increased hard copy (i.e., CD) music sales, not higher sales overall.

    The third once again discusses the music industry in the Napster era, and the use of file sharing to bring lesser-known artists to light. This is not at all comparable to current ebook era, with its millions upon millions of free and low-cost book downloads all available for promotional purposes LEGALLY.

    Interested in seeing the Michael Smith article when it is available.

  31. Sunita
    Dec 30, 2011 @ 11:08:22

    @hapax: Ridley referred to downloading in general and Junne asked for examples of such studies, again making a general reference. There are far more studies of music than books at the moment, although I’m sure that will change.

    If you think that music and books are non-comparable then we can just agree to disagree on this. One empirical observation: there was plenty of free and low-cost music around to download so i don’t see that as being as big a difference as you do.

    If you google Michael Smith and CMU you’ll get links to his research page but they’re mostly about music downloading.

  32. Ridley
    Dec 30, 2011 @ 13:12:30

    @hapax: Oh, such a charming ad hominem. You and Concern Troll on Vacation are a finely matched pair.

    “Damn the data! I AM POWERED BY EMOTIONS!”

  33. hapax
    Dec 30, 2011 @ 21:50:27

    @Ridley:

    Whereas *your* comment was such a pleasant display of patronizing condescension: “Silly authors! Why are you concerned with your petty “rights” and “laws”? I, Ridley, know what is REALLY best for you!”

    Not to mention “Forget what the ‘studies’ actually SAY — what they MEAN is whatever happens to suit my convenience!”

    But I’m sorry. Any minute now you’re going to trot out those “facts” which actually prove what you claim, not a possible interpretation that happens to miraculously line up with what you want to believe.

    Please, while I’m waiting, do toss around more insults and inaccurate terminology to demonstrate how you, unlike the rest of us, are “powered” by pure rationality.

  34. hapax
    Dec 31, 2011 @ 09:39:26

    I posted last night in a fit of CAPSLOCK RAGE!!!! and I do apologize to all the readers here. It doesn’t help any argument to get angry. I requested comment deletion, but for whatever reason, TPTB chose to let the comment stand.

    So let me try that again.

    I do think that there are similarities *and* differences between digital “books and music”, and that comparisons are suggestive. I do not believe that they are definitive. Consumption of digital books and music differ in some small ways. But when discussing illegal downloading and sales, it is much more relevant to look at the ways in which they are distributed, marketed, and promoted; and the publishing industry and the recording industry are very much different — ESPECIALLY in a study that looks at the Napster era, during which (although there was some legally free music, which was not accounted for in that study), there was nothing like the flood of promotional free and cheap material heavily marketed and easily findable through most publishers, every retail site, aggregators like Books On the Knob (and this very site), and practically every other comment thread.

    So — especially when the effects on sales discerned are marginal, highly theoretical, and dependent on conditions that do not currently exist (e.g. the abandonment of DRM and a heavy PR compaign to raise the “moral cost” of illegal downloading), I do not find the studies I have read particularly convincing.

    But that, actually, is utterly irrelevant to my original point.

    Illegal downloading / piracy is theft. Not theft of a “physical object” — do you really think that people who point this out are that dim? — but a theft of rights. The legal principle has stood for almost fifteen hundred years (see St. Finnian v. St. Columba) that the person with the rights to a creative work also has the right to control what copies are made of it. Hence the word, “copyright”.

    Pirating steals that control. It illegally takes something real away from the owner, who does not get it back. Thus, in colloquial terms, we call it “theft”. It doesn’t really matter in a general discussion which section of the criminal code such an act might be prosecuted under; any more than if you run over me with your car, it matters that much to me whether you are charged with “assault” or “negligent driving” or “vehicular homicide”. True, the procedures and penalties might be different, but what I really care about is that you ran over me with your freaking car.

    That there may be financial benefits to the creators — even if this is conclusively proved beyond a doubt — is also irrelevant. They still hold the rights to how that material is produced, copied, and distributed. They may be persuaded by “facts.” They may be “powered by emotions.” They may be operating under the instructions of invisible unicorns in the bushes. That is all beside the point.

    The point is that the holder of the copyright has the legal and moral privilege to decide how and under what terms that material may be copied and distributed. When someone illegal downloads a book, they are stealing the creator’s power of choice.

    People will have to decide for themselves whether their desire for the material and their ability to obtain it legally is sufficient to justify such a theft. I make no claims to moral purity here — I have myself violated copyright, many times, when I rip CDs that I purchase to my iTunes library. I certainly cannot make that decision for anyone else.

    But to declare that stealing control is somehow doing the creator a favor — by “promoting the work” or “making it more widely known” or “setting up future sales” or even just “the work wouldn’t be read otherwise” — is (in my opinion) arrogant, condescending, patronising, and (to use a word from the other thread), unacceptably entitled.

  35. Author on Vacation
    Dec 31, 2011 @ 11:45:31

    @Ridley:

    @hapax: Oh, such a charming ad hominem. You and Concern Troll on Vacation are a finely matched pair.

    “Damn the data! I AM POWERED BY EMOTIONS!”

    Copyright infringement = crime

    It is an indisputable fact. Not an opinion. Not someone’s feelings.

    I’m sorry if that bothers you.

  36. Ridley
    Dec 31, 2011 @ 12:04:13

    @hapax:

    Illegal downloading / piracy is theft. Not theft of a “physical object” — do you really think that people who point this out are that dim?

    You’re the one who made the jewelry analogy. Don’t look at me for pointing out what a stupid comparison that is.

    And you’re still making a moral/emotional argument against a numerical one. No one has managed to accurately quantify the damaging effects of illegal downloading. The few who have tried have come up with the downloading -> increased sales link. Repeating that downloading is wrong is beside the point. I want someone to quantify the harm for me.

    After all, this unproven assumption of harm is fueling bullshit legislation like SOPA. I’m not keen to give up my uncensored internet for a gut feeling that online copyright infringement harms our economy. Figures, or GTFO.

  37. Lil
    Dec 31, 2011 @ 12:17:51

    @Ridley:
    Are you seriously claiming that you are entitled to download pirated books until someone can prove to you that your illegal actions actually cause monetary harm to the author?

    Even if it were possible to prove such a thing one way or another (one can hardly assume that people who are willing to download pirated books will suddenly become honest when asked about it), what difference does it make? An illegal action is still an illegal action.

    I am amazed at the logical contortions people will go through to justify their behavior.

  38. Ridley
    Dec 31, 2011 @ 12:30:21

    @Lil:

    Are you seriously claiming that you are entitled to download pirated books until someone can prove to you that your illegal actions actually cause monetary harm to the author?

    No, no I’m not. I haven’t downloaded anything illegally since the Napster days. It’s the shrill anti-“piracy” lobby that assumes that anyone wanting hard evidence of the harm of illegal downloading must be downloaders themselves.

    No, I’m just a paying reader who thinks “piracy” isn’t the sales-eating menace authors assume it is (keep in mind, music didn’t have the same prevalence in libraries or used stores that books do) and an American citizen leery of eroding 1st Amendment rights to mitigate harm no one seems to have enough data to prove actually exists. That’s the extent of my self-interest.

  39. Author on Vacation
    Dec 31, 2011 @ 15:27:49

    @Ridley:

    Repeating that downloading is wrong is beside the point. I want someone to quantify the harm for me.

    It isn’t that “downloading is wrong.” I download items all the time. Books, films, music, all legally purchased by myself or by someone else for me. There is nothing wrong with that.

    Copyright infringement is a crime.

    Your outspoken demand to prove harm related to a crime is misplaced. Any time a citizen elects not to obey the laws of his/her society, harm occurs. Not everything is about money (although I don’t pretend for a minute many laws and regulations do revolve around money.)

    I can run a stop sign or a red light and rationalize there was no opposing traffic when I did so, therefore my traffic violation was “harmless.” That does not mean I did not violate the law or that law enforcement is in the wrong to penalize me appropriately. I am not special; I am not above the law.

    I don’t doubt everyone who chooses to infringe on an author’s copyright sees himself (or herself) as somehow special or exceptional. I don’t see how any of these people differ from me. I love reading; I am a lifelong reader. Throughout my life I’ve spent more time and money on reading than on any other hobby. There are books I want that I cannot get for various reasons. I can’t afford them. I consider them overpriced and I am unwilling to pay. A book may not be legally available in my region. A book may not be legally available in my preferred format.. But I have never even considered violating an author’s copyright just so I can have what I want.

    Many readers share these concerns and choose not to commit crimes in order to procure books they desire. The only thing “unique” about ebook “pirates” is that they are criminals. That is what makes them different from their peers.

    Who is harmed by these crimes?

    Readers are harmed more obviously than any other concerned party. If authors don’t sell, they don’t get new contracts. If authors don’t sell enough, they’ll depart the industry and seek more rewarding opportunities elsewhere. This means fewer books and fewer authors for readers to meet, consider, and enjoy (or not.)

    The reader determined to commit copyright infringement is wiping his/her dirty bottom with an author’s hard work, an exquisite blend of time and expense to which an author committed himself for his own artistic expression. The only way it could be more insulting or psychologically wounding is if the offender seized an author’s bare hand and literally wiped his/her filthy backside with it.

    HOWEVER, the offender harms the honest reader financially most of all. The reader who dropped $1, $2, $5, or $10 on the book/s of his/her choosing is made a chump by copyright infringers. “Ha ha. I got the same book you bought for $X. I got it for nothing.” Law-abiding people understand the offender didn’t get it for nothing. The offender committed a crime and a crime is not “nothing.”

  40. Ridley
    Dec 31, 2011 @ 16:03:12

    @Author on Vacation:

    Your outspoken demand to prove harm related to a crime is misplaced.

    Bullshit, and you know it. Not all crime is equal and establishing harm is necessary to determine punishment. Murder and embezzlement are both crimes, but since one’s more harmful than the other their punishments are quite different.

    Before we go blowing up the goddamn internet to protect copyright, I want a thorough accounting of what harm is actually occurring. I don’t want to commit the equivalent of executing a dishonest accountant. What if this crime of copyright infringement due to illegal downloading isn’t actually damaging? Do you have any evidence to prove that it does actually harm authors? If it’s not damaging, do we need to go to greater lengths to enforce copyright?

    Once something’s a crime, it’s not off-topic for debate. Your argument here is about as relevant as showing up to a marijuana legalization debate and repeatedly pointing out that marijuana is illegal.

    Copyright infringement’s legality is not the issue here. Its lobby’s inability to account for its harm while calling for draconian enforcement measures is the issue. You say it’s damaging, so prove it. Show me some numbers. Until then I’ll invoke Hitchens’ Razor: “What can be asserted without evidence can be dismissed without evidence.”

  41. Author on Vacation
    Dec 31, 2011 @ 19:19:44

    @Ridley:

    Bullshit, and you know it.

    I know nothing of the kind. Neither do you.

    The presence of piracy is horribly damaging to the psyche and the morale of authors. This alone is a serious problem. It impacts an author’s choices to continue writing professionally. It impacts an author’s choices as to where s/he will publish.

    These choices and decisions impact what books readers get, where they get them, what they cost, or IF they get them at all.

  42. Sunita
    Dec 31, 2011 @ 22:01:05

    Copyright infringement = crime

    It is an indisputable fact. Not an opinion. Not someone’s feelings.

    The US Government distinguishes among types of copyright infringement. The 1997 NET Act amended the existing law, which criminalized commercial use of illegal downloads, as follows:

    § 506. Criminal offenses

    (a) Criminal Infringement.–Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 2319 of title 18. either–

    for purposes of commercial advantage or private financial gain, or

    by the reproduction or distribution, including by electronic means, during any 180-day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000, shall be punished as provided under section 2319 of title 18. For purposes of this subsection, evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement. [emphasis and strikeout in original]

    In other words, someone in the United States who downloads over $1000 worth of movies, books, music, or anything else under copyright for personal use within a 6-month period can be prosecuted for a criminal offense. Less than that would qualify as copyright infringement and is subject to penalties of various kinds, but it fails to meet the standard of a criminal offense.

    So no, all copyright infringement is not crime, at least not according to US law.

    For those who would like a study that directly focuses on book downloading, Carolyn Jewel discussed one on a Dear Author post in 2009. I haven’t seen the study so I can’t speak to its reliability/validity. But it tracks with the Harvard 2004 paper I linked to above.

  43. cecilia
    Dec 31, 2011 @ 22:15:11

    This “debate” about the illegality and possible consequent punishment of downloading books illegally seems really pointless and self-indulgent to me, to be frank. Authors write books, and sell them. The expectation, as we all know, is that they will be paid. For those of us who are consumers, except when things are explicitly given away for free, we know the expectation is that we will pay for the goods that we consume. To try to justify not paying is just lame. You don’t want to pay? Borrow books from the library. You don’t want to borrow books from the library, or pay, and you just want to have whatever you want? Don’t expect others to respect you.

  44. Author on Vacation
    Dec 31, 2011 @ 22:21:25

    @Sunita:

    So no, all copyright infringement is not crime…

    As Ridley arleady pointed out not all crime is equal. Someone shoplifting $3 in merchandise is not doing the same harm to society as someone stealing $1,000 in merchandise. That does not mean the more petty offense is not harmful. .

  45. Sunita
    Dec 31, 2011 @ 22:32:39

    @Author on Vacation: I am not talking about the moral or normative harm that may result from illegal downloading (I say “may” because all authors do not take the same position on piracy).

    You made a statement that copyright infringement = crime. I provided the government’s own specification of the law to show that in the eyes of the US government, your description elides important distinctions. Since all infringing actions are not considered criminal, the question of whether all crime is equal does not arise is kind of beside the point.

  46. SonomaLass
    Dec 31, 2011 @ 22:51:24

    @cecilia I don’t think most commenters here are trying to justify illegal downloading. But we are all affected by what the industry does to try to fight it, so I think there’s good reason to want to figure out the real costs and effects.

    For example, DRM software. It’s a pain; it keeps me from freely moving an ebook I bought and paid for to a different device or application. Consequently, I prefer to buy books that don’t use it; publishers who use DRM to prevent piracy are discouraging my purchase as well. Does the prevention work well enough to be worth lost sales? We don’t know without some analysis of data.

    SOPA is the biggest example of measures being suggested to combat piracy that will have serious impact on the many internet users who don’t engage in illegal downloading. I don’t see why it is unreasonable to ask for proof that measures suggested to deal with the ” piracy problem” a) are really called for (i.e., proof that illegal downloads are any measure of lost sales) and b) would really be effective (DRM sure doesn’t prevent piracy). Because regulation should be justified and effective, and any negative impacts should be justified by the positive ones.

  47. Author on Vacation
    Dec 31, 2011 @ 23:07:21

    @Sunita:

    Sunita … fine. Sometimes copyright infringement is a federal criminal offense. Other times it is a civil (tort( offense. It is still an offense. It is still wrong.. It is still harmful to another person. It still entails a person taking property to which they have no legal right.

  48. cecilia
    Dec 31, 2011 @ 23:12:37

    @SonomaLass: Whatever SOPA is about or whatever its effects may be, trying to argue that authors are not harmed or that we must quantify how authors are harmed by illegal downloading before we start admitting it might be wrong is simply, as I mentioned before, self-indulgent. SOPA has become in this conversation a side issue, with the more fundamental point being whether or not it is wrong/punishable to take something for nothing. Jess, I think, started this particular aspect of the thread by suggesting that authors might benefit from her illegal downloading, and at least one other piped up in support. The rest of the conversation went from there, with a “yes, there’s harm,” and a “no, prove it” blah-blah-blah. That’s what I’m responding to, more than SOPA itself.

  49. Carolyn Jewel
    Dec 31, 2011 @ 23:24:28

    Ah. Yes. The Brian O’Leary report from 2009. Tomorrow (here in California) it will be 2012 and guess what? His report is STILL the only rigorous study. Because publishers are not sharing data with anyone who equipped to make proper sense of it. RWA, to my knowledge, backed away from working with O’Leary.

    Subsequent analyses of the data the publishers do rely on (at least publicly) have thoroughly debunked that data. The numbers are made up. The report everyone cites used numbers with no basis in fact. The US GAO itself said the claims of the harm of piracy were based on made up figures.

    There is now even more anecdotal evidence (see eg Neil Gaiman) that piracy does not hurt authors or publishers in the way they claim.

    Here’s what I know: I know territorial restrictions imposed by my publishers (and for the purposes of this comment, I don’t care if publishers have contractual barriers) decrease my sales by at least 30%. I know that because 30% (and growing) of my self-pubbed sales are coming from territories where my Big 6 pubbed eBooks are not available. That pretty strongly suggests that if the Big 6 could/would sell in those territories, they’d see a pretty big bump in sales. (and, I would at least hypothesize a correlated decrease in piracy.)

    I suspect (but cannot prove) that the piracy that does represent a lost sale is close to trivial compared to the money publishers (and authors) lose by not getting English language books into the hands of English language readers wherever they might reside.

    I hear all the time from readers in Canada (yes, Canada, apparently some of the Big 6 have trouble getting eBooks on sale in Canada), the UK, New Zealand, Australia, Indonesia and India who cannot get my books. They want to buy them. And they cannot do so legally.

    Those are biggest English-speaking and reading markets in the world outside the US. They are, in fact, bigger than the US Market.

    If publishers want my sympathy, fix that problem first. Get your books into the hands of readers who would pay for the books, if only they could.

    In 2009, I believed publishers would want to know the true market conditions they’re operating in. What business wouldn’t? Who doesn’t want their bean counters to accurately count the damn beans?

    In 2012, astonishingly to me, it seems they don’t care to know. Instead, they’re supporting manifestly unconstitutional legislation (SOPA and PIPA) that was written by corporations looking to solve their business problems by trampling on our due process rights. It’s already happened: The DOJ/DHS just dropped its action against a company whose domain they seized under current legislation without a warrant and without due process. For a year. One big, “oops, I guess we were wrong. You aren’t a pirate. Sorry.” SOPA and PIPA would make that even easier.

    One of the issues I see is that understanding piracy requires at least some understanding of technology. Before you talk about piracy, you really should understand what BitTorrent is and why it’s actually a brilliant technology solution. Before you talk about solutions to piracy, you should actually understand at least the basics of the internet.

    It’s 2012, and publishers and authors are not just still ignorant on all these subjects, they’re willfully ignorant.

  50. Robin/Janet
    Jan 01, 2012 @ 12:34:54

    @Author on Vacation: Actually, even those statement are not true.

    Ever heard of the Fair Use defense? It’s called a defense because it requires INFRINGEMENT. But in some cases, infringement is FAIR. Sometimes it’s necessary (i.e. for academics), sometimes it’s warranted for artistic purposes.

    Copyright has, from the beginning, been about balancing the intellectual rights of the creator and the public. Because the public has rights, too (like the First Sale Right).

    Also, I have to ask: how many people who abhor piracy of books own knock-off designer purses, cd’s burned without authorization, copyrighted images downloaded to websites or used as avatars/email signatures, or other content/merchandise that violates copyright or trademark protection without even thinking about it? How many books are written that contain song lyrics or trademark-related content without the author giving it a second thought?

    Infringement is as central to copyright protection as the protection itself. That doesn’t mean all infringement is created equal, but it also doesn’t mean all infringement is B A D, either.

    One more general comment on this issue: many have pointed out that artistic progression is built on previous works of art. One of the most famous copyright infringement cases involved 2 Live Crew’s use of Roy Orbison’s Pretty Woman in its music (http://en.wikipedia.org/wiki/Campbell_v._Acuff-Rose_Music,_Inc.). Orbison’s estate sued and lost, because the Supreme Court held that use of the song was fair use. New (e.g. transformative) works are sometimes created from protected content (this is one of the central contests in fan fiction), so I think we need to be more cautious, rather than less, when we speak of copyright (and trademark) infringement as if it all = piracy. Piracy, too, has specific legal definitions, and not all infringement = piracy.

  51. Courtney Milan
    Jan 01, 2012 @ 14:27:14

    I think everyone talking on this post acknowledges that copyright infringement is against the law. But enforcing laws requires action, and not all ways to enforce laws are justified.

    For enforcement of any given law, we have to ask: what is the cost of preventing this particular unauthorized activity, and are we, as a society, willing to pay it? It’s simply not true that all unauthorized activity must be stopped at all costs.

    That’s why we have laws in the United States that limit authorities ability to search, to seize, to issue warrants for arrests. That’s why we have laws that give people the right to avoid self-incrimination. We technically allow jury nullification in criminal trials. We allow people to discuss illegalities. We allow people to carry guns, even though those can be used to harm others. The Bill of Rights is founded on the principle that we as a nation are unwilling to accept perfect enforcement of the laws if the result is a significant intrusion on other’s rights.

    And with good reason. We would be absolutely appalled if the federal government gave private entities the right to strip-search everyone leaving their store to prevent shoplifting. Nobody has the right to shoplift–it is in fact a crime and it is actually theft–but handing over unmitigated, unregulated power with little regulation for its abuse is not worth the savings society would get on shoplifting. We would rather allow shoplifting than descend to such draconian measures.

    I don’t understand why it is hard to imagine that we should treat SOPA like we treat any other law: as a question of balancing the rights of various groups. That means that we have to look at what benefit authors get from SOPA, and what costs must be paid for its implementation.

    I get that your rights are being infringed. But that doesn’t justify all possible responses to piracy. How much are you being hurt? What effect does this law have on the rest of society?

    If I’m not willing to consider the rights of readers, I don’t see how I can have any moral authority when I ask them to think of my rights.

  52. hapax
    Jan 01, 2012 @ 20:14:12

    For enforcement of any given law, we have to ask: what is the cost of preventing this particular unauthorized activity, and are we, as a society, willing to pay it? It’s simply not true that all unauthorized activity must be stopped at all costs.

    But the flipside is also true: the determination that a particular means of stopping an unauthorized activity is too high does not lead to the conclusion that the activity should be de facto authorized, let alone encouraged.

    I don’t see ANYONE here endorsing SOPA. I personally oppose most (not all) uses of DRM. I make a conscious choice to patronize publishers and retailers that encourage downloading of free samples and content to promote marketing.

    I make my living fighting censorship and promoting First Amendment freedoms. Despite Ridley’s hyperbolic accusations, I would donate time, talent, and treasure to PREVENT people from “blowing up the Internet.”

    My only assertion, from the very beginning of this discussion, was that book piracy was “theft” — later clarified to mean not a technical citation of the US Criminal Code, but in the clearly understood colloquial sense of “taking something that isn’t mine without paying for it or otherwise gaining permission.”

    That “something” isn’t something tangible but the (millenia-)long generally accepted right of an author to control the reproduction and distribution of what they have produced. “Fair use” doctrine does not take away this right, but modifies it and clarifies it, just as, say, environmental regulations do not take my real estate from me, but modifies and clarifies my use of it, for the benefit of all.

    I am still surprised that this is such a controversial position.

    I am not surprised (I’ve been on the internet long enough) but saddened to find out that the corollary argument is controversial: that the theoretical benefit of “increased sales” for the author does not justify or otherwise this act of theft because a) it is unproven; b) applies a proposed general benefit to an individual specific act of harm; and most important c) it makes the assumption that a financial benefit (sales)– at ANY nebulous undetermined threshold — is an appropriate compensation for loss of rights, without consulting or even considering the opinions of the person whose rights have been stolen.

    While I have heard a lot of people talking about side issues like the drawbacks and deficiencies of SOPA, DRM, geographic restrictions, and various other specific anti-piracy acts (most of which I agree with and have strenuously argued in other contexts), I am still waiting to hear why those problems somehow make piracy as a practice defensible, beneficial, and something to be applauded and encouraged.

  53. Ridley
    Jan 01, 2012 @ 22:22:34

    @hapax:

    I am still waiting to hear why those problems somehow make piracy as a practice defensible, beneficial, and something to be applauded and encouraged.

    You and Concern Troll on Vacation are the only ones saying people are applauding piracy. The worst you can say about the rest of us is that we said we’ve seen studies linking illegal downloading and increased sales for the infringed party. I think you two are making the logical leap that this means we think piracy’s a good thing.

  54. Courtney Milan
    Jan 01, 2012 @ 23:46:40

    @hapax:

    I am still waiting to hear why those problems somehow make piracy as a practice defensible, beneficial, and something to be applauded and encouraged.

    I don’t think I’ve ever defended piracy, or applauded it, or encouraged it. In case there’s any doubt: Tsk, tsk, pirates. You should be ashamed of yourself. Go sit in the corner.

    But for everyone else: I’m curious why you equate dislike of SOPA with being underprotective of authors’ rights. As far as I can tell, at present the choice is left to me, the copyright owner, to determine whether and how I want to go after infringers to enforce my rights. In my case, I’ve deemed it not worth my time to bother with takedown notifications.

    But I get that not everyone feels that way. And so for people who feel differently, they can send out takedown notifications. They can even, if they don’t want to be bothered with it–use a service like Muso to have someone else generate takedown notifications on their behalf, so as not to have it command too much time and/or attention.

    So right now, authors get to choose the level of enforcement that occurs. If I believe that piracy will increase sales, I can choose to let people pirate. If I don’t, I can choose to shut it down. Right now, it’s my decision as a copyright holder whether to tacitly let pirates carry on, or slam the door in their face.

    Under SOPA, I can lose that choice entirely. SOPA gives those who hate piracy a trump card over authors who are indifferent.

    I get that authors have rights and that people are taking them away. But right now, the copyright statute grants to me the right to determine how to deal with infringement. SOPA wants to take that right from me and hand it to the attorney general. SOPA does not protect my rights as an author to determine how my work is disseminated.

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