1) copying. The fair use doctrine, as articulated in the statute, is not an exhaustive list of what is permissible copying. The court defines what is fair use on a case by case basis. Creating a back up copy of a file is considered fair use. Everytime I re-download an ebook from the vendor site, I am creating another copy. This is likely fair use. The simultaneous downloads are permissible under the Amazon Terms of Service. My suggestion to authors who are so convinced that they are right and I, Courtney Milan, and others are incorrect, is to file suit against Amazon for copyright infringement.

My point is that fair use does permit wholesale copying. The seminal case on this subject is the Sony Betamax case in which the Supreme Court determined that copying for time shifting purposes was fair use. There are other important fair use cases. I suggest, if you are really interested on this subject, to read the caselaw.

2) Defend it or lose it. There is no requirement under copyright to defend infringement or suffer the loss. That is a trademark principle. You can never defend your copyright and you still maintain the right to it. Further, you can allow people to take a short cut across your land and that doesn’t create an easement (that’s what it is called) by mere inaction.

3) your oral sex analogy? I don’t understand any of it.

4) Pointing out incorrect assertions of the law is much different than “bashing innocent, fun-loving people”. Allowing incorrect assertions of the law is dangerous. I wish more authors would undertake a study of copyright law.

Because there are people who persist in using the comment thread to spread incorrect interpretations of copyright law, I am going to have to close the thread. I don’t have time to keep coming back here and correcting people’s positions.

I just asked my librarian recently if we would be getting library ebooks through Overdrive, as our library already offers Overdrive audiobooks. There were two strikes against it.

1. The expense. In order to offer the Overdrive audiobooks, the libraries do an almost co-op deal where they pay a fee to the State and the State kicks in the rest or 90% of our libraries wouldn’t be able to afford the program. We’re a state of commuters (to Boston and our own few cities) and audiobooks are in high demand. Ebooks, not so much yet. But every request is noted by the library and if there’s enough of them, eventually it could happen.

2. The committee studying the possible implementation of a library ebook program through Overdrive has decided that until they can decipher the world of DRM/formats/devices/etc, there’s no way in hell they want to try to walk patrons through it.

Hopefully, with devices like the Kindle and the Nook on their way to being household words, libraries will become more open to the possibility.

Up until about 7 years ago, I wasn’t a reader. I might buy a book a year if that. I’d also never read a romance novel. I had been a big reader many years before, but fell out of the practice. Finding I had more time on my hands, I wanted to start reading again because I missed it.

I went out and bought a few books thinking they sounded interesting after reading the blurbs, never finished any of them because I didn’t like them. I wasted about $50 on that experiment. But I still wanted to find something to read.

Along came a friend that gave me a bootleg copy of a Nora Roberts book telling me she thought I’d like it. I read it and LOVED it. My first romance. I promptly went out and bought it new in paperback. It was part of a series so I also bought the other 3 that went with it.

My friend then gave me a bootleg copy of a Linda Howard book and told me how to find pirated copies of books. I loved the Linda Howard. It was also part of a series so I went out and bought them all in paperback.

The next author I tried was Suzanne Brockmann. I downloaded a copy of one of her SEAL books. Loved it. I went out and bought all I could find in the series. Had to buy several used though as they were out of print.

I have since bought every Nora Roberts, Linda Howard and Suzanne Brockmann book out there in paperback. New when I could, used if they were out of print.

Through pirating, I’ve tried out many new authors. Many of them have been stinkers that I didn’t finish so as far as I’m concerned, I save myself some money. But I’ve also found many authors I liked. If I like the books, I go out and buy them. I definitely buy new when I can.

Today, I read anywhere from 2 to 5 books a week. I know which authors I like now so as soon as they have a new paperback out, I go buy it. I have about 20 authors that are autobuys. There are a couple authors I read that only publish in ebook, but I still go out and buy their books. It’s a personal standard. If I read it, I buy it.

Do I still practice this? Yes, I still “try out” unknowns via bootleg copies.

I also refuse to pay a used book seller outrageous prices for an out-of-print paperback. I’ve seen some as high as $500 or more. Not going to happen. Now once the book is re-issued, I’ll go buy it.

What would solve this? eLibraries. If such a thing were available to me, I could do my “trying out” legally.

Why don’t I use a regular library? Too much effort. You have to find one, get in the car and drive. Then you have to remember to return the books on time. I travel a lot and I have a busy schedule. For me, a regular library just doesn’t work.

I found out about a thing called NetLibrary, but you have to have a library card to use it. Excited, I went and got a library card from my local library. I then found out that your library has to sign up so I still couldn’t use NetLibrary.

Oral sex is illegal in some parts of the world, but as long as we don’t announce in public that we are doing it, everyone can go happily about their business. Of course, to the best of my knowledge, no one holds the copyright on oral sex.

Imagine if someone did (own the copyright on oral sex). They probably would not be smart to announce in public that they didn’t mind if a few close friends indulged in it, because that could legally undermine her copyright.

I hope this isn’t an offensive analogy. It’s not intended to be offensive. Whimsical, yes.

Our imaginary inventor of oral sex, with a precious copyright that has not expired or moved into the public domain, doesn’t mind what she doesn’t know about, but she has been warned not to say so (perhaps by her lawyer, or her publisher).

What is she to do when some well-respected and eminent people begin to announce that everyone has the legal right to share oral sex? Privately, she might agree that they have a moral right.

However, there’s also a “defend it or lose it” potential, just as if we allow the public to take a short cut across our front lawns for six years without protesting, those paths across our front lawns become common land.

If she points out her understanding of her copyright, she runs the risk of being accused of bashing innocent, fun-loving people who enjoy sharing oral sex, also of spoiling sport, and of insulting the community.

Maybe some of the authors we think are overly hawkish and unreasonable are simply in an impossible situation.

I had the pleasure of visiting your website, and would like to compliment you on your publisher’s attractive artwork.

Concerning Fair Use…. Here’s the wording from one of the impressive links you supplied.

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

“Fair Use allows copying for purposes such as: criticism, comment, news reporting, teaching, scholarship, research.”

Fair Use refers to short excerpts, not the entire work (see point 3).

If the intention were to allow a book lover to copy a work to circumvent paying for it, I think that would have been stated.

Would you call it “Fair Use” if the Janes, in the course of reviewing one of your books included the entire text of your full length book as part of their review?

Of course not, see point 4.
It is not “Fair Use” if it negatively effects the potential market for the book.

Maili’s already responded, but one thing I was going to say is that IMO piracy is an extremely complicated phenomenon, and I think we need to focus on differentiating how much of it occurs because *something is not available* and how much of it occurs simply because people want free stuff. And then, beyond that, what are its real effects. It just frustrates the heck out of me when authors insist that every download of a pirated book is a lost sale. I just don’t see the justification for such an assertion or belief. Plus, I don’t think piracy is ever going to be eliminated.

I know this is beyond your comment to me, but it got me thinking back to a year or two ago when some authors were complaining that some readers (I was included in this group) were talking too much about plagiarism. I felt like many of our posts were being met with a collective shrug. And it was mind-boggling to me, because that’s something that a) directly and negatively affects authors and readers and books and book prices, and b) is directly connected to the author community ethic and over which authors have some direct and actual control. So plagiarism is a big yawn but piracy — over which neither authors or readers have control, beyond not engaging in it — is the lit firecracker. I know it’s not all the same authors and I know that not all authors feel the same way about piracy (or plagiarism), but sometimes stuff like this frustrates me and makes me wonder how much evidence, empirical data, and research about piracy has been circulated among authors.

@Anne Douglas: I definitely think that there’s an attitude in NY toward digital publishing that has kept it from evolving more quickly. Wasn’t it Macmillan that was just revealed to be paying its authors very low digital royalties?

But I don’t think digitally pubbed authors are universal in their feelings about piracy, either, as I’ve seen arguments from some digitally pubbed authors that mirror the arguments of some of the NY pubbed authors. But I agree that the discussion has created a widespread sense of demoralization.

Here’s what I wish most of all: I wish that authors would get really good education about their digital rights and how to best use them. I wish they’d get really good education about what copyright is and isn’t, what rights they do and don’t have, and how best to use those rights. I wish that there was a stronger advocacy structure for authors to feel more empowered in relation to publishers. I wish everyone really got paid what they’re worth. I doubt I have control over any of those things, but I think authors have control over at least some of them, and I don’t know how much of that is a digi v. NY thing.

Ah, good, I was a bit worried that perhaps you used the posting of books you disliked as a revenge. I soooo didn’t want that to be the case, and I’m soooo glad it’s not.

Thank you so much for being open, and for others not spazzing out with flame posts. This is an important issue and needs to be discussed rationally. If we can’t find the underlying “whys” nothing can be addressed nor resolved.

Now I will slip on my author hat. While I would adore a reader being so enthusiastic over my book they want to share with friends, the sheer volume worries me. Millions, hundreds of thousands, thousands, and even hundreds seems too much. The exponential distribution possiblilities is a problem.

I am working very hard on my end to grasp the fact that many of these individuals would not have bought my books anyhoo and this could be good promotion. At the same time, others must understand that putting an entire catalogue of my work up for free thereafter is very damaging. Especially for authors who do generate good work, but don’t have the sales numbers to back that up when they next query a publisher. Truth is, we are judged on those numbers. It’s a reality, just like pirating is a reality, though I wish I could say different on both counts.

And another truth: Be it print or epub, authors only receive a certain number of free copies of their own work (as listed in their contracts) to pass on to others. When that limit is reached, we must then purchase more copies (at a discount, of course) to use for all our promos. If caught copying our own works, we could breach our contracts and be tossed on our ears or sued for damages. So I do hope some people will understand that while we would love to give away more books to entice readership, it’s simply not in our power, nor our budgets.

And as a general “you” (thank you for that A Reader, it kept things clear, and that’s not a snark) I have to say this or bust. (Okay, maybe the “you” in this instance is more defined based on CERTAIN, not ALL comments.)

“You no more OWE me a living than I OWE you a free book, or a book in exactly the format you want.”

Sorry, but I’ve been sitting on that for days. It felt good to say it.

Now I hope we continue on with reasonable discussions of the “whys”.

Let me ask you, though, does that mean every book you find that’s been pirated is crap? Is that the only way a story get’s pirated, is, if somebody like you deems it unworthy of the purchase price but worthy to be read for free?

Absolutely not. Pirating communities function the same way any romance book community does. Good books by talented authors get shared more often (and for the same reasons you share books) and are of course in higher demand than crap books. It’s been my experience that people who share books with a million of their closest friends do it because they like sharing, not because they want to stick it to the man or punish authors for writing bad books.

I mean I know that I normally share my books with friends and family because I think it’s great and somebody else needs to know about it, does the opposite work for pirated books?

So you’re saying, you pirate ebooks to try them out because you can’t find useful reviews – the pirated copy becomes the “try it” copy?

If you enjoy an ebook you’ve pirated, do you then buy books by that author?

Sort of but not really. I discovered pirated books hoping to find some honest reviews of these books after I’d been burned so many times but the reason I pirate books is because it’s easy and I’m not afraid of being “caught”. I’m not claiming what I do is right because I deserve to know what I’m buying and can’t find a good review–I steal books I have no business reading if I’m not willing to risk my money on them whether they’ve been reviewed by a reputable reviewer or not.

But I do use pirated books as a “try before you buy” way to discover new authors and absolutely do buy books by authors I’ve discovered that way (I’ve actually bought the same book I’ve already pirated to get it in my prefered format by a new favorite author) but that isn’t really why my ebook spending has increased. Frankly, reading a few books by an author for “free” just lets me know if they’re capable of writing a coherant story–not that they will. That’s why reviews and free short stories don’t impact spending like pirating does.

I spend more money now because I’m not afraid of wasting my hard earned money on books by some talentless hack looking to cash in on a menage craze or what have you. I still “waste” my money on crappy books that shouldn’t have been published but because I can read as much as I want for “free” I’m more willing to spend my money in the first place. Who cares if I was burned by the last three books I’ve bought? I’ve read some good ones for free that more than make up for it.

Legitimate reviews for books by the e-publishers are few and far between so I actually never did find those reviews I was looking for. And as long as readers are being charged premium prices for shoddy books by amateur authors I imagine you’ll find more and more people willing to pirate books just like me. Please understand, I’m not just talking about books I just don’t “like” I actually feel like I’ve been defrauded the writing and editing is so bad, especially when the excerpted portion reads nothing like the actual book.

…

I’m spending more money now on books than ever? … If not for finding those pirated sites I can assure you small e-book authors wouldn’t continue to receive almost half of my book buying budget.

So you’re saying, you pirate ebooks to try them out because you can’t find useful reviews – the pirated copy becomes the “try it” copy?

If you enjoy an ebook you’ve pirated, do you then buy books by that author?

I also deleted comments relating to the above issue as they made no sense when the original comments were deleted.

Why exactly do you not only download books from torrent sites, but post books to them?

For the same reason I buy books even though I’ve discovered I can download just about any book I’ve ever wanted to read for free–I value the service (funny thing to say about thieves I know but there you have it) so I support those sites by contributing books.

I understand you came upon the whole thing due to frustration, but you also stated that now you have access to reviews and the like so as to have better control of purchasing power.

Again, I’m not judging at this point. You were very honest and I’d like to understand more of the “why”.

Legitimate reviews for books by the e-publishers are few and far between so I actually never did find those reviews I was looking for. And as long as readers are being charged premium prices for shoddy books by amateur authors I imagine you’ll find more and more people willing to pirate books just like me. Please understand, I’m not just talking about books I just don’t “like” I actually feel like I’ve been defrauded the writing and editing is so bad, especially when the excerpted portion reads nothing like the actual book. I love that the e-publishers are opening doors for authors who otherwise might not get a chance to see their work published (and letting me discover some new favorite authors) but at the same time the majority will never be able to make a living at it simply because they’re just not good enough.

A little bit more on the “why” of it is that I also don’t think for one minute that pirating books impacts authors sales in a negative way. How could I think that when I’m spending more money now on books than ever? And as much as it pains me to admit it I’m not unique–the truth is dirty, rotten, scumbag pirates buy books too, not just steal them. If not for finding those pirated sites I can assure you small e-book authors wouldn’t continue to receive almost half of my book buying budget. And while I’d never tell an author they should be thankful people can steal their books (that always cracks me up) I will say you (general you) might want to tone down the name calling–I think it’s safe to say showing your ass online is never a good thing.

This is an honest question to you without any of my hackles raised:

Why exactly do you not only download books from torrent sites, but post books to them?

I understand you came upon the whole thing due to frustration, but you also stated that now you have access to reviews and the like so as to have better control of purchasing power.

Again, I’m not judging at this point. You were very honest and I’d like to understand more of the “why”.