On piracy and copyright and file sharing and free speech

Home taping is killing live music. Isn’t that what those old adverts used to say? The ones supposed to shame those of us with a drawer full of bootleg cassettes in our student rooms? I don’t recall such campaigns doing much good. But I also remember why we had those cassettes and why such small-scale, furtive illegality bears no comparison with the massive digital piracy that’s now going on and which so many people seem to think is somehow acceptable or excusable.

We copied those tapes because we were broke. I was, in 1983, and I am not talking about not having the cash to buy everything that I might want. I am talking about not having the money to buy the essential necessities of life. After paying my hall fees out of my student grant (which included daily breakfast and six other meals a week), I had £17.30 a week to live on, by which I mean buy clothes, food, books and everything else I might need. At the time, unemployment benefit was £25.40. And that was just in term time. Outside term, I worked in supermarkets, pubs, hotels and old folks’ homes, often two jobs at a time, as well as studying for the upcoming term. So no, I couldn’t afford legitimate music.

But here’s the thing back then, and it was the same for everyone I knew. As soon as we could afford to, we did buy legitimate copies of the music we loved. Being able to do that was almost a rite of passage and definitely a cause for celebration. Not least because the quality was so much better but also because we knew what we were doing was morally suspect, if not outright wrong. When we didn’t need to do it, we stopped.

In more recent decades, I’ve known pals with computer hard-drives loaded with illegal copies of UK and US TV programmes and films. This was because they had no legitimate way of seeing them; their local TV stations and cinemas weren’t showing them and at the time, because Amazon seemed convinced that the Balkans were still a war zone, they couldn’t buy anything online for local delivery. Once again, these friends worked very hard to get hold of legitimate copies, unhappy with the necessity of dodgy downloads. I’ve bought boxsets and books here in the UK and shipped them overseas. As soon as local conditions allow, those friends make legitimate purchases because they all understand that supporting the creative minds behind the things they loved would mean more of the same in the future.

That’s what copyright does. As Katherine Kerr says in her blog post which I urge you to read in full

The Founding Fathers established copyright protections with a short term to encourage writers and artists to create works ultimately for “the public good.”
… I doubt if it ever occurred to them that poor people might write books and thus need the money from the sale of those books to fund the next project. Fortunately, other legislators did realize it.
…Copyright frees the writer, in particular, from dependence on the patronage of the rich. …Books that would appeal to those “lower orders” were in short supply as well — until copyright. Books by and for women were most definitely in short supply …

This is not to say that copyright law is all wonderful. It’s highly complex, nationally and internationally and has been badly skewed by successive interventions by powerful special interests. I absolutely agree that it needs reform and I wish those campaigning for change every success. Mind you, I’m not convinced we’ll see much change until legislators at the highest levels really understand the need for change and are also prepared to take on those powerful interests, like, oh, for example, Disney. I’m not holding my breath, given those Rules for Life that include ‘Never start a land war in Asia’ also include ‘Don’t mess with the Mouse’.

Anyway, what has that got to do with the immorality of someone offering someone else an illegal digital copy of an author’s book, depriving that author and their publisher of at least the chance of legitimate revenue?

Deciding that a whole body of law has serious flaws is not an excuse for ignoring those aspects of it which are clear and straightforward, especially not when ignoring it is for one’s own personal gain. I object on both practical and moral grounds to the damage done to the UK dairy industry by the monopolistic practises and buying power of the big supermarkets. This does not entitle me to take a pint of milk from Tesco’s without paying for it. That is still theft. Or to give a technological example, for the benefit of those arguing with me on their iPads and iPhones – disapproving of the conditions in Apple’s Chinese factories doesn’t entitle me to help myself from the nearest Apple Store.

Ah but copyright law restricts free speech, I have recently been told. It is certainly true that restrictive regimes have used and abused various copyright laws to restrict and muzzle opposition. Yes, thanks, I know all about the history of samizdat publishing.

Once again, I ask, what’s the relevance of this entirely separate and yes, necessary debate, to the question at hand? How does how protecting my legitimate right to stop others illegally using my work for their own personal profit restricts anyone else’s free speech?

Since I’ve yet to get any satisfactory answer to that, let’s consider another entirely irrelevant argument that keeps being made. The file transferring technology that we now have offers so many varied and valid uses, not least enabling those under repressive regimes to share their thoughts and organise dissent. So do those undoubted benefits mean we have to tolerate the flood of digital piracy as a regrettable but inevitable consequence?

In what other sphere are abuses of technology ignored for the sake of its legitimate uses? I live in rural England where farmers and others have many and varied, legal uses for shotguns. I’ve yet to see any thug using a sawn-off to rob a bank given a free pass by the police.

Because what we are talking about here is illegality. And I am thoroughly sick of the supposed defence that file-sharing sites aren’t actually hosting the illegal files, they’re just putting the people who want to share them in touch with each other. Right, and pimps don’t prostitute their own bodies and fences disposing of stolen goods don’t actually go housebreaking. That doesn’t make what they do any less morally and legally reprehensible.

No, I am not in favour of SOPA or PIPA or similar. These are all fundamentally flawed attempts at legislation made by people with no real understanding of the complexities and realities involved. It’s on a par with the UK government’s response to the last outbreak of Foot and Mouth disease here; when the slaughter-and-cremate policy they insisted on was so outdated that procedures included instructions on requisitioning wooden sleepers and coal from local railway marshalling yards to build pyres. Yes, really. They were relying on plans made in the age of steam trains. But I digress.

Once there is the will, there must surely be a way to do something to address this very real and growing problem. Law courts can generally distinguish between those innocently caught up in handling stolen property and those who make a career out of knowingly engaging with organised and wholesale theft. Why can we not see those behind these file-sharing sites, claiming their hands are so clean, in court being asked to explain on what basis they imagined the latest John Grisham best-seller wouldn’t be subject to copyright and thus showing people where to find a digital copy for free was all so fine and dandy?

Because writers and artists are being deprived of their legitimate income. No, I don’t equate every illegal download with a lost sale but a percentage surely are. No, I don’t blame digital piracy for the way writers’ incomes have plummeted in this past decade. This is down to a perfect storm of changes in retailing and short-sighted moves by individual publishers and legislators resulting in a slew of unintended, destructive consequences. No, I won’t digress on all that here. If you want to know more, find me at a convention some time but be warned, you will end up feeling that the Wedding Guest collared by The Ancient Mariner got off lightly.

We have to deal with the situation we’re now in and the cold, hard facts are writers’ incomes are now under such pressure and publishers’ margins have been trimmed so finely, that even a small drop in sales lost to digital piracy can make the difference between contracts being renewed or writers being dropped. Forget the money for a moment. The current situation is bad for readers and the wider world of literature. Great writers are made, not born. Enduring and important works of literature emerge once authors have learned their craft and honed their skills in exploring and conveying the essential truths of the human condition. No one can do that if their writing career is cut off at the knees after two books.

Actually, no, let’s not forget the money. Because whether or not you care if any writers earn a living wage or not, let’s consider who is really raking in the cash from illegal piracy. Individuals like Kim Dotcom, who’s apparently made millions out of Megaupload, after his earlier convictions for computer fraud and insider trading. Then there’s the student facing extradition from the UK to the US over his website offering links to pirated TV shows and films, which was earning him £15,000 a month in advertising revenue. Okay, let’s say a book site wouldn’t get the same traffic. Reduce that by a factor of ten. That’s still £1500 a month for such a parasite abusing other people’s creativity.

How about the latest massive ebook piracy operation; a very slickly deceptive site from a cabal of thieving scum, offering unlimited downloads for a monthly subscription of $14.95, ‘just like Netflix’. No, not like Neflix (and I do hope their lawyers are aware of this) because not a penny of those revenues was going to authors or publishers and all those links were to wholly illegal downloads.

This operation has enraged me more than any other in recent times, because I can so easily see innocent new owners of a kindle/nook/kobo/whatever, with little Net savvy or understanding of publishing being duped. People like my Dad who’s contemplating an ereader on account of aging eyesight, a book lover who would never dream of actively seeking out illegal downloads. Someone like him could easily think this was an entirely legitimate site, just like Netflix, not least because he was honestly paying his monthly fee and the way such sites mouth pious platitudes about observing the Digital Millenium Copyright Act and here’s how to notify them of unintended infringement. Right, infringement of that brand new Patrician Cornwell bestseller which they had no reason to believe was under copyright.

Granted, such sites comply with DMCA takedown notices. Yes, they do, because it’s no skin off their nose if the people they’ve duped into handing over their cash can’t actually find the books they want next week. But why should the onus be on publishers and authors to police this theft of their intellectual property and then to laboriously issue those DMCA notices, a separate one for each of the separate formats in which any individual title is offered. This now takes up entire working days for editorial and legal departments, adding still more to a publisher’s losses.

And since we’re talking money, let’s consider how hard up someone must be to need to find illegal downloads, in the same way that we poverty-stricken students would club together to buy a pack of C90 cassette tapes. If you are able to afford to buy an ereader, still an non-trivial and discretionary expense, surely you cannot be that hard up. Okay, some people will get them as gifts who might struggle to find the price of a fancy coffee to spend on a new book. Then there are no end of free and entirely legitimate downloads available. Not just copyright-expired material though Project Gutenberg but offers and promotions from the publishers themselves.

I am no enemy of ‘free’. I choose to offer some of my own writing without expecting payment. Head on over to the Solaris blog for a copy of ‘The Wizard’s Coming’ if you like. Yes, this sort of thing is excellent advertising and a valuable promotional tool, more than ever in this digital age. The difference is, I have chosen to do this. My rights to earn a legitimate return from my own work have not been illegally and immorally ignored by someone out to line their own pockets.

I am a great fan and a lifelong user of libraries and while I value my Public Lending Right money from the UK, Irish and other European governments, I would donate my own books to libraries without any such recompense. I never mind seeing my own books in second-hand shops, even though I won’t earn a penny from resale. I see that as another way for my work to gain greater currency and circulation. The difference is libraries, physical or digital, are regulated and second hand copies of physical books are always going to be limited in number. Digital piracy downloads can add up to tens of thousands within hours.

Forget debates on cultural differences and history behind copyright or whether or not authors should write for art or money or the uses and abuses of technology. How is the current situation when amoral third parties can profit so massively from wholly illegal behaviour in any way acceptable? Answer me that and I’ll give you a free book.


62 Comments on “On piracy and copyright and file sharing and free speech”

  1. Michele says:

    No answers, but some thoughts:

    A friend of mine was lamenting a couple of days ago over the fact that the site io9 had got her interested in a book by a new-to-her author – only to discover she can’t legally buy the ebook from Amazon.com because she’s in Ireland. Why are there still these stupid and arcane territorial restrictions on buying digital content? The people behind such things are depriving themselves and others of income by not allowing a young woman in Ireland to buy an American ebook. And yes, she could order a physical copy and have it mailed to her, no question, but why is that allowed when buying the digital format is not? It’s completely bonkers!

    And the media companies – why don’t the TV channels worldwide offer legal downloads of the latest episodes of their TV shows to buy at a reasonable price – they must know that people worldwide are downloading the episodes within hours of its broadcast, so why not make it legally available and earn some revenue from the stuff? Of course, some people will still download illegally, but I’m sure plenty wouldn’t. Why make overseas viewers wait weeks or months either for their local TV company to air it (if you’re lucky!) or for the DVDs to come out when you could make money from digital downloads? They could do what the Beeb does with iPlayer downloads – set it up so the file will no longer work after a certain time period. And yes, I do know the Beeb are working on an international iPlayer option for TV shows – but everyone should be doing this, not just one TV company in one country.

    These people need to get their heads into the 21st century and stop thinking in early 20th century terms, because the world, and especially technology, has moved on.

    And no, none of that is intended as a justification for illegal downloads – it’s just me wondering what’s up with the content providers and why they don’t get their arses into gear and make stuff available for people to buy when they want to do so, wherever they are in the world.

    • jemckenna says:

      all good thoughts and highlighting the problem that crucial policies and decisions are being made by people so woefully behind the times.

      • Michele says:

        It’s like this ACTA thing – how they hell are they going to police it? How will they prove, if they’re checking people’s laptops and other gadgets at border crossings, that the files which are on those gadgets are not legally downloaded? Will they make the passengers open their email accounts or their accounts with (for example iTunes or Big Finish) to show that the files have been downloaded legally? I don’t think so! Customs officials have enough to do with worrying about terrorists, why make them do more work checking for illegal files as well?

        Completely bonkers!

    • Oreouk says:

      Some counterbalancing thoughts about why some of those things work the way they do.

      eBook rights are sold separately to hard copy book rights and they are policed differently. The rules are in place to protect authors etc, inasmuch as if they sold the eBook rights in America and then everyone in the world could buy the American eBook then they would not be able to sell the eBook rights again in Ireland (or would get a lot less for them). I agree that’s frustrating, but it does have a legitimate reason behind it. The answer is to contact the author’s publisher in Ireland (or the UK) and push for them to release it as an eBook in a geographical area that you are part of. Slow but necessary.

      On the TV front an episode released in the US in March might not air in the UK until August. If they made it available for a paid download everywhere from March, again it would be harder to get the TV company in the UK to pay to air it in August. Until they shift over to globally synchronised airing of TV shows that’s unlikely to change. And the US schedule is complicated by sweeps weeks making the release of episodes a bit choppy. The majority in the UK who do not want to download would rather all the episodes came out smoothly for an entire season than do that chop and change thing just to match the US market.

      I do think that there’s more that could be done to speed legal access in multiple markets, I’m just chucking these thoughts into the mix because I find understanding why these things work the way they do helps me be less frustrated with them.

      • jemckenna says:

        Thanks for this, and yes, having more actual facts leading to a greater understanding is always a key to progress.

        One reason I decided to write this piece was realising how many people don’t actually realise how much money those offering ‘free’ ebooks are actually making for themselves.

    • David Moore says:

      That’s where we get into Complicated Territory. Sometimes the content provider doesn’t have permission to sell the intellectual property everywhere in the world. Under the current contractual situation, the person allowed to sell a book to the Irish isn’t necessarily the same person who’s allowed to sell it to the Americans, or to the French. A lot of authors and agents are happy – even keen – to sell world ebook rights, but some aren’t, which is perfectly understandable, since it can generate more revenue for the agent and the author if they break the rights up and sell them separately in different regions.

      That, in turn, creates in Amazon and other vendors an obligation to treat every book’s sale in every region of the world as a separate legal and commercial entity, and it’s up to the vendors with the territorial rights in each region to make sure they make the book available in those regions. But the systems can be quite clunky and difficult to navigate, because they’ve been designed to accommodate every possible contractual situation.

      So, in your friend’s case, the vendor may have had US rights but not Eire/Non-US Anglophone/European (or however the contracts split the territories up) rights, and the author hasn’t sold those rights yet, or the vendor who owns those rights doesn’t have their version of the ebook ready to upload yet. Or maybe one vendor owns world rights, but given the likely sales figures, he’s decided not to go to the time and effort uploading the book in Ireland, UK, Europe, Australia, etc. etc. and is just concentrating on selling the book in the US, and Amazon doesn’t know that the vendor has the world rights and so is obliged to prevent sale to customers in Eire.

      It’s outdated and clunky, but often not for want of trying. There’s a lot of people involved, and the system has to take into account all the very complicated ways it can work out.

    • J says:

      “Why are there still these stupid and arcane territorial restrictions on buying digital content?”

      Because when a writer/their agent sells their book they can often get more money on it if they sell rights for different territories separately, rather than just selling ‘worldwide’ or ‘world english’ rights to one publisher in one auction, they can have lots of auctions.

      The writer in question probably hadn’t found a U.K./Irish buyer, yet.

      • jemckenna says:

        And the current financial turmoils in the Eurozone and across the Atlantic are having their impact on publishing as in every other business, especially when it comes to rights deals for different territories. It’s one thing to ask a publisher to take a chance paying money up front when they’re not sure how a book will perform over the next year. It’s something more when they’re not sure how their own bank/currency will cope with the next twelve months…

        There are a great many complexities here.

      • eimear says:

        Random fact; Amazon treats Ireland as different from UK for ebooks (Ireland is part of “Europe”) so even fewer Kindle books are available here. Every other digital retailer treats Ireland as part of the same territory as the UK, and AFAIK the latter are correct since the two are almost always kept together in contract rights.

      • jemckenna says:

        that’s interesting – and irritating on many levels. Also, I’m guessing that could well help explain the problems another Irish pal has reported via my LiveJournal – of buying legal releases for her ereader, only to find some DRM glitch prevents her from accessing them – at which point her only recourse is to head – guiltily – for an illegal download.

      • TheSFReader says:

        Other “Random Fact” regarding Amazon and territoriality : while Amazon uses location for restricting access to some content, it also uses it to put a “Levy” on books when the buyer is in some countries
        See David Gaughran’s post about it : http://davidgaughran.wordpress.com/2011/07/11/amazon-hold-back-the-growth-of-e-books-around-the-world/

        One more reason I “Vowed” not to buy from Amazon anymore.

      • jemckenna says:

        more interesting and useful information – thanks for the link.

        And further proof, were it needed, that Amazon are in business for their own interests, first and last.

  2. 210Darryl says:

    What a great blog post…thank you Rowena for retweeting it.

  3. gurdonark says:

    I am very active in the netlabel netaudio movement. We believe in sharing music under liberal licenses. I agree with you that illegal downloading of books, movies, music and other creative copyrighted material is wrong. I do support copyright reform to remove expansions of protection for work that should otherwise fall into the public domain. But that does not justify taking others’ work without complying with the terms of payment.

    I opposed the old days of bootlegs and sharing via home taping. For that matter, I still deplore the common industry practices of studios and publishing houses who violate content licenses through mis-reporting revenues and expenses. The mistreatment of artists by this group is the unheralded failure of current law.

    I have little sympathy for the philosophy of pirate bay and megaupload. However, both were dealt with under existing law without sopa or pipa. The DMCA notice is not too great a burden upon copyright owners. Its main problem has been its abuse by companies who seek takedown of work in the public domain.

    Many points you make resonate wtth me, while a few do not. Yet let me add one point as an activist for Creative Commons netaudio. A creative reason exists to eschew

    • jemckenna says:

      is yourlast point incomplete? do please continue if so.

      And yes, that’s a valid point about abuses of DMCA notices, especially by big corporations trying to stake a claim to traditional/out of copyright material.

    • gurdonark says:

      To continue, a creative reason exists to eschew downloading studio movies, record company product and mass market books. We seek to build a new shared culture of bolder, better works. Illegal uploads and downloads give cachet to tired mainstream corporate media. Part of going to the ramparts for creativity and sharing is to abandon the moats of worn-out industry product. Even illegal downloading is a misplaced and selfish kind of support. Better shared netlabel music awaits the listener who abandons illegal downloading.

      My view is simple: if the artist wants to be paid for the use of copyrighted material, either pay or do not buy and do not use. But my corollary is to freely, as an artist, share.

      • jemckenna says:

        Fair points indeed, and the mainstream corporate media business model is definitely under threat/going to have to change.

        for instance, I am watching crowdfunded projects by a few authors I know with very keen interest indeed.

        Still not convinced that illegal downloading is in any sense ‘sticking it to the Man’ though – misplaced and selfish we can agree on 🙂

      • gurdonark says:

        To clarify I do not think illegal downloading sticks it to the Man, or if it does, it does so wrong-headedly. I fear, instead, that it both takes from and glorifies the Man, RIAA and MPAA and all. I favor crowd funding and revamped financing instead.

      • jemckenna says:

        then my understanding was flawed, so thanks for the clarification and we are in accord.

  4. mike cobley says:

    The problem of such piracy could be resolved in favour of the IP owner, but it would mean massive deployment of authoritarian power by government and/or publisher/distributors of the Works. Likewise, without legal protections artists would be in a situation even more dire than it is just now. I dont know if there is an answer to this, but I`m all for trying to foil digital pirates while realising that digital freedoms entail risks of this kind.

    • jemckenna says:

      any attempt at draconian enforcement is surely doomed to failure – look how well that worked (NOT) for the music industry.

      Publishers must play their part by making legitimate downloads freely available – and the whole issue of territoriality is so outdated in the digital age, that must be addressed.

      But that’s not the whole answer – when my Lescari and Hadrumal books have been widely released in eformats for all to buy, they’ve appeared on illegal filesharing sites within 24 hours.

      The best tactic I can see at the moment is calling illegal downloading for the theft that it is, refusing and refuting the BS arguments, and making such downloading as socially unacceptable as drink driving, for instance.

      • Unfortunately, there are people – even within our industry – who will continue to defend piracy under the grounds that we can’t *prove* it hurts sales, or because they disagree with copyright law as it’s written, ignoring the entire legal issue.

        You can’t change behavior while you’re excusing/justifying it.

        [I agree that copyright law needs to be fixed, but you don’t fix something by ignoring it]

      • Julian West says:

        I’d love to think that people would be embarrassed about stealing books, but they probably won’t. Certain things became socially unacceptable, and carried a stigma. Others didn’t, or didn’t among the groups in which they were carried out. There were people who’d never buy South African wine but who would buy cocaine, without being too put out by stories of mass beheadings in Mexico.

        It’s clear that there is massive abuse connected with copyright infringement, and that there have been terrible, draconian internet-busting laws proposed to deal with it. We agree that the laws being proposed are bad, and that the situation as it stands is awful, with massive piracy taking place – but I’m not sure if there is a solution that will hit the right balance between a free internet and the rights to intellectual property.

        The obdurate incompetence of an entire industry in failing to even try to produce a secure ebook format would be shocking, if the film and music industries hadn’t made exactly the same mistakes. It’s unlikely that they could have come up with something perfect or uncrackable, but they might have made it a bit more difficult for the pirates. As they totally failed to comprehend how the internet and computers work, they’ve decided to force the people who do understand it to fix it for them, with stringent penalties involved. Are the publishing industry motivated by the misfortune of the individual writers? Hmm.

        It’s probable that in a comparitively short time, people’s houses won’t have books, magazines, dvd’s or cd’s any more. They’ll have a lot of stuff, stored nowhere in particular, most of which they won’t access because they’ll have too much. At the moment, their needs are being catered for by the old companies, who don’t understand what’s happening and are in massive denial, and the new companies, who understand it very well, and want to control it. Apple would like to control everything that passes through their equipment and software, and are offering devil’s bargains to people who think they can be trusted.

  5. Good points and I agree. Where I have a problem is seeing how, other than by removing some or all of the much-vaunted freedom of the net, any restriction can be enforced. It would be nice if we could all be persuaded to do without illegal downloading, file sharing, and so on, but that, realistically, isn’t going to happen. SOPA and PIPA and ACTA may be ill-conceived, but something like them may be the only solution that actually works, in which case we are morally bound to accept that the old neo-hippie ideal of the free and untrammelled interwebs is dead, and rightly so. If it had never become a medium for commerce it might have been able to stay free, but since it is, it can’t.

    • Holding ISPs responsible for taking action once they have been informed [with due process] that a client is hosting illegal sites already has a legal precedent WRT fencing stolen goods, etc.

      The important phrases there are _taking action_ (to encourage them to clean their own house on a regular basis) and _due process_. SOPA/PIPA/ACTA seemed to not understand due process, but relied on knee-jerk, fear-driven reactions.

  6. rdm says:

    You touch on so many issues, it’s hard to deal with them all…

    But, to be brief: it’s “acceptable” because it’s legal. Sort of…

    Fundamentally: laws are full of technicalities. And, laws mostly work because people are mostly agreeable and mostly nice (though, of course, not always). We just need a few hints and we generally want to get along when dealing with important issues — but we have to have sensible priorities before that concept even makes sense. (And everyone is aware, I think, of annoyances where someone else had a conflicting sense of what’s important and what’s appropriate, right, or whatever else.)

    But copyrights have so many issues that it is hard for many reasonable people to cooperate with the laws.

    The concept of copyright made sense when the technology for copying was a printing press. It does not make sense for electromagnetic content.

    You can make a copy of something, in the electromagnetic sense, by using a mirror. What’s bad though is not the copying. It’s the mass production and resale where things are unfair and out of hand. And if you get copying involved there (with my mirror, perhaps), that copying only vaguely related to the real issues.

    • jemckenna says:

      No, it’s not legal. And the concept of if you want it, pay for it, is not hard to understand.

      • rdm says:

        We might be talking about different issues here?

        For an example of my original point: laws have specific limits. For example, the laws of the UK are not the laws that apply in Pakistan. This is complicated by treaty agreements. But, there’s a reason we have courts, and it’s courts that get to say what is and is not legal.

        If we narrow the discussion further than this, we get into the specific details which depend on the location of the incident.

        This is not to say that everything is legal, or any such thing. But if there’s a lot of money involved and the copyright violation is still happening, there are probably very good reasons for the court to not be taking action. But a reasonable discussion of those issues requires that we narrow things down to specific cases — country and copying mechanism at the very least.

  7. moe says:

    I don’t know about the private ethics of pirate sites, but if they are the only way to have affordable access to some materials in the third world, they are serving a market that legitimate marketers are ignoring. Can someone who earns $4/hour afford to buy a Mozart or Kieslowski box set at the US dollar price, even as a special treat? No. Is it legitimately available to them at an affordable price? No. Are there public libraries in third-world towns from where a legitimate copy may be borrowed? No. Should they be denied access to culture, then? I agree that performers and writers should be able to earn a living, but what do you suggest third-world types do? I think simply saying “if you want it, pay for it” is exactly what the legitimate marketers do. And that’s part of the reason piracy persists. Please understand, I’m not defending or endorsing theft. Just thinking aloud that pirates may be filling a gap that marketers ignore, at least in low-wage and controlled economies.

    • jemckenna says:

      I agree that business models will have to change, especially with respect to different regions with different economic levels of buying power and access to legitimate products. See above with respect to friends’ experiences in the Balkans. Pirates are definitely exploiting old-fashioned thinkers refusing to accept the new global realities.

  8. sklivvz says:

    I quite frankly respectfully disagree. Having been an artist myself, I totally understand that an author or an artist may feel cheated by people copying their work.

    However, there are a few other points to consider.

    While it’s easy to make a ethical argument, and substantially saying: “I worked a lot, I deserve some money”, reality doesn’t really work that way. Because economy doesn’t work that way. Prices will tend to the costs of production. In this case, the cost of producing a copy of the work is essentially zero. All the cost is fixed cost – the cost of the first copy.

    So what the laws of economics tell us, is that authors and artists have so far enjoyed a privilege: the one to be paid an indeterminate, and in some cases, enormous, sum for a fixed amount of work. It doesn’t work that way for most other people. You want a kilogram of bread? Pay a few pounds. If the baker wants to make more money, they have to work more, and produce more bread. They don’t produce a recipe and then expect everybody using the recipe to pay them.

    This has only been possible because of a few factors: because of favourable laws, such as copyright laws, and because of the almost monopoly of the means of production of copyrighted work. In other words, people have been buying books and CDs (or LPs) in the past, e.g. physical objects, because they couldn’t copy them. Now, books, videos, music and other forms of art have become easily copiable and intangible. On the other hands, copyright laws that were only written to benefit society are now laws that protect the interests of the few (because, really, they should benefit the author, for a short amount of time, and not, for example, their estate).

    So what we have now is digitised media. This is quite literally the final step. Each and every book or piece of music or video ever written is now faithfully equal to a number. All computer files are numbers. When people “copy” a work, their computers literally “copy” a number.

    I do not think that preventing people from copying numbers by saying “number 18483 is my number and you can’t share that” is ever going to work.

    In conclusion, I do understand the other side of the story, but ultimately we did not kill the car industry because it sent the horse and carriage industry out of business. Art is built around technology and humanity. Artists will find a different and possibly better way of expressing themselves – one that leverages the digital network age instead of being its victim.

    I think society should enable them – not hinder progress because of a dying business model.

    • jemckenna says:

      If we’re talking economics, the ongoing income from an author’s backlist has always been an essential element of the financial model and sustainability of publishing. Piracy does real, lasting and serious damage to this income stream.

      You may not like the royalties model but it is a very well established economic principle and works very well in a great many business spheres, not just publishing.

      The rest of your points about digital media being copies of numbers are irrelevant.

    • Chrysoula says:

      Actually, a baker who performs a single-to-many service does expect to be paid for each copy. A loaf of bread is one to one. and the best part? Most people are happy with the idea of paying for their copy. Most people don’t want that to change; accessibility is far more important than some kind of philosophy about a new digital age, because it lets them apply the same rules to every part of their life.

    • Robert says:

      Books are not recipes. They’re the bread itself.

      Books are not numbers, even if they can be reproduced by a numeric code. This is as silly as saying that they used to be just ink in a bottle.

      The argument is not “I worked a lot, I deserve some money.” For many, many writers, it is, “I cannot keep doing this if you keep stealing it.”

  9. Justin says:

    Thanks, Juliet! Well said. Now I need to buy one of your books.

  10. davefreer says:

    Juliet I agree with your thesis. There is just one point which is however demonstrably wrong and I wish you’d either remove it or correct it, so as not to give the trolls something to fasten onto (‘Oh that is wrong, therefore the rest of the argument is too’). It has no fundamental bearing on the points you make and taking it out would have no effect:

    This – ‘and publishers’ margins have been trimmed so finely, ‘

    Sorry, several major publishers are reporting _increased_ profit margins this last year. Look at their publicly accessible annual reports. (sarcasm mode on) You knew that because, as when they saved a bundle on electronic typesetting, they immediately shared that benefit with authors by offering more generous royalties. (sarcasm mode off). It appears that this largely due to selling ebooks from their backlists — to which, at least in some cases their rights are reverted, non-existent, or in dispute, making them indistinguishable from the thieves selling books to which they have no rights, but with even less excuse (these publishers know and understand copyright law, and know just how poor the authors they’re stealing from are).

    There are — I believe — effective laws on the statue books to prosecute these thieves without venturing into SOPA or PIPA (which I do not believe were crafted in ignorance – effectively these are monopoly protection laws, designed to guarantee by legal sleight that Juliet McKenna or Dave Freer cannot cut out the middleman and that the Mouse and the large media corporations will continue to take the lion’s share of the income for PIPA certification).

    • jemckenna says:

      When looking at publisher’s margins on the profitability of individual books and writers, the margins can be very fine indeed at the moment. That’s where these decisions on renewing contracts etc are made, not on the aggregate corporate bottom line. That’s my point here – hope that clarifies.

      With regard to publishers and the royalty rates they’re offering on ebooks and whether or not they can claim e-rights on the basis of decades-old contracts that don’t even mention electronic versions… that’s a whole other blog post/can of worms/nest of poisonous snakes… and not one I’m in a position to publicly engage with at the moment…

      Well worth you raising it, mind you…

      • davefreer says:

        I have been raising it for some time. The conduct of publishers has been remarkably like that of ebooknicker, and should have their CEO’s one cell along from Mr Dotcom in my opinion. Unfortunately, their response has been the same too, except slower and more dishonest. Our ‘pirates’ will not ignore your DCMA knowing it will shut up the author who noticed and they can get away with it again with hundreds of others – and the thieving publisher will eventually return rights and if sued pay hush money and settle out of court with the authors who noticed — knowing that they can thus get away with it with hundreds of others.

  11. Alex says:

    Q: How does how protecting my legitimate right to stop others illegally using my work for their own personal profit restricts anyone else’s free speech?

    A: The tools used to supposedly protect copyright are actually used to suppress freedom of expression and freedom of assembly in many parts of the world.

    The laws currently in place to supposedly protect copyright, e.g. the Digital Millennium Copyright Act, are routinely used to prevent indendent (non-corporate) content owners from distributing their own copyrighted material, in order to limit competition against better-funded companies.

    No one’s property rights are so important that they override constitutional and human rights of due process, the presumption of innocence until proven guilty, the right to freedom of expression without prior restraint, the right to privacy (not having one’s communications monitored by the state). There is no economic loss from so-called piracy (much of which is widely considered to be fair use) that justifies the massive cost industries and ultimately consumers would bear to monitoring everything people did online, nor any reason to target third parties (payment providers, DNS registries, hosting and email providers, etc.) because criminals (or people accused without any court decision) use their services. (Best metaphor I’ve heard is like closing the bookstore to prevent shoplifting.)

    Far from protecting your rights, failing to provide legal and legitimate channels to distribute your work has the effect of fostering other, less legal channels. That’s a flaw in the distribution system that needs to be fixed. Wrapping content in complex and non-portable digital rights management increases the cost and creates overhead that prevents many items from being distributed at all; distribution oligopolies and copyright variations intended to protect local content have the effect of making it hard to get content in some places that is easily available in other places; not selling products to people who want them is a market failure, which the invisible hand of supply and demand finds ways to correct.

    The argument that “it was okay when we did it as kids because we had no money, but not okay for kids today to do the same thing with the technology they use” is illogical.

    • jemckenna says:

      I never said it was okay when we did it as penniless kids. We knew it was wrong and we stopped doing it as soon as we could. Just as friends in other countries with no legitimate access to the content they want have stopped illegal downloading just as soon as they can that legitimate access.

      Publishers of all forms of digital media need to address issues of legitimate access worldwide.

      Abuse of copyright laws and DMCA etc either by repressive regimes or oppressive corporations does not legitimise abuse of my work and copyright for their own personal profit by entirely unrelated third parties. Two wrongs do not make a right.

      I do not support hugely expensive and intrusive online monitoring for a whole lot of reasons, not least because it will not work.

      All of which I have already said quite clearly.

  12. jemckenna says:

    Okay, it’s 11pm here in the UK and a school/work day tomorrow, so I’m heading for my bed. Good night all.

  13. I wonder if we aren’t all going about this in the wrong way. Maybe what we need is to write a new kind of digital text – that creates protections of copy written material. I imagine something like this:

    1) Digital file is created and then passed through a program that turns it to gobbeldygook.
    2) File is bought legitimately and a ‘key’ is given that changes the gobbeldygook back to clear text.
    3) If the file is copied, it becomes gobbeldygook again, and WILL NOT revert.
    4) The first line of code in the source document contains an irreparable ‘bomb’ that auto detonates when the source code is opened at any point after encryption, thereby foiling attempts to pirate a copy.

    Of course, the hackers would eventually learn a way past it, but in the short term it might help. You could even create special library versions that auto destruct in 30 days from check out etc.

    • jemckenna says:

      This is definitely the sort of thinking that we need – ignoring the problem won’t make it go away, after all.

      And content providers should learn from each other. I’ve recently bought ‘double play’ DVDs which give me a digital copy for my own use as well as the film on disc. How long before physical books come with an ebook licence code? If the will is there, surely a way can be found to make such solutions work.

      • Kate says:

        There’s some of us publishers working on ways to do that that are logistically sound and feasible. Bundling should be a reality, as should the notion that, if you’ve bought a book, you can read it in whatever format you like, whenever you like, without restrictions on device.

        Sadly, the Big Six are fighting that tooth and nail, which, like territory restrictions etc, makes some people feel justified in pirating books, because they want that immediate, full gratification.

    • rdm says:

      That is not new — that’s basically DRM (albeit with some minor variations that are technologically impossible if taken too literally).

      You might want to think about prohibiting distribution of all electronic copies of a work. That should make some of the issues clearer, I think.

      • jemckenna says:

        I cannot see how one could ever prevent distribution of electronic copies of a work. There are no legal/legitimate ebooks of my early backlist as yet. That hasn’t stopped people cutting up physical books and scanning them to make crappy pdfs.

      • rdm says:


        And in one sense, that’s good — it means that you do good work. But in another sense, it’s bad — that would be an example of a disconnect with your fans.

        From a copyright perspective, electronic copies have issues in common with performance work and with printed work. But they are not screen plays, either. They can have a long duration, somewhat like a printed copy (though I doubt most electronic copies will survive for centuries). They have a long range — you can encounter them across the world — farther than the loudest concerts. They also have a selectivity to them, where your neighbors can ignore them.

        This means that, to be able to eat, you need some form of compensation that works well with the distribution and propagation characteristics of electronic media.

        One approach is roughly equivalent to an old street-corner busker: put up a web site with a “donate” button, with some of your content available there, for free, for anyone that happens to pass by.

        Another approach is audience engagement — roughly analogous to a singer taking requests. For a novelist, this approach has some interesting problems. But perhaps it could be made to work by offering to fill in backstory, or some such thing? I am not sure if this could be made to scale properly…

        Another approach might involve delving into the arcane aspects of software, and producing something new. There has been big money here, if particularly creative people (minecraft might be a good example), but that’s only loosely related to the creation of prose, and has risks I do not fully understand.

        But, ultimately, any approach that involves rapidly changing technology will itself have rapidly changing characteristics.

      • TheSFReader says:

        Just one small step that while not totally preventing “piracy” of your early backlist… would be to put up a legitimate “reasonablly priced” version… (and preferably without DRMs 😉 )

        – Bad effect : pirated version goes from crappy pdf to beautiful epub/mobi
        – Good effect : “Readers” get to buy your ebooks (where they couldn’t), some “pirates” may want to checkout and buy your other books after reading this one.

        Only problem I see with this one, is who owns and uses the ebook rights…

      • jemckenna says:

        You have the key problem wrt to my early backlist precisely identified – the ebook rights – and it’s one I’m tackling at the moment, with issues arising that would make it very ill-advised for me to discuss that particular aspect in a public venue 🙂

        Once that’s settled, there’s the digitizing to be done, since the final text is only available as the printed hard copy – even ten years ago in publishing, cut and paste still truly meant scissors and glue when getting to page proof stage.

        Then there’s the ‘cover’ art, design, paying for ISBNs, correct formatting for the different devices and then getting it uploaded to the different markets out there, and then letting people how and where know they can find the books…

        it’s a very non-trivial exercise, believe me!

      • TheSFReader says:

        Oh, as a faithful reader of various “Writers” blogs (self, or traditionally published alike), I totally “get” (while I can’t imagine how much work it represents) that it’s FAR from trivial.

        Don’t you have backups from your own version or drafts ? I know C.J.Cherryh found some, which helped her put back some of her backlist up at Closed-Circle.net ?

        As for the rest, yes, it means adding a new Hat (Publisher’s) on your head, with all the work that goes with it…

        Way much work indeed…

      • jemckenna says:

        I have back ups etc of final drafts of all my first nine books but I came to the conclusion that the process of transferring every change from the copy edit and page proof stages to those texts wouldn’t actually save me much time versus either rekeying completely (cheapest quote £750 per book unless I did it myself, and also with the risk of intrducing new errors) or scanning and correcting the OCR. Came to the conclusion that scan/OCR was the best option for optimum end result – bulk-feed scanner (under £500) being a one-off expense I was prepared to bear, before I came to an arrangement with a 3rd party and contracted the digitizing out.

        I’m not about to issue an uncorrected final draft as an ebook, after seeing the stony and universal disapproval on an audience’s faces at a literary event, when one author blithely said that’s what she was doing (assuredly not C.J. Cherryh or anyone similar). Oh, yes, there were changes and differences to the book as printed, but no one minded about that, she trilled.

        That’s not the message I was getting from the outraged mutters soon swirling around the hall…

      • TheSFReader says:

        Oh, and I hear, that exercice, once “mastered” can become quite trivial, after the first ones…
        But I have NO first hand experience on that.

      • TheSFReader says:

        Oh yes, unproofed OCR versions are what we get from “traditional” publishers, and we ‘readers’ don’t like them that much. If you sell an ebook, you’d better make sure it’s ready for publishing, just like you plan to do.

        But even If you digitize out, I guess one additional copy-editing pass should still be mandatory.

        As a reader (and potential customer: I found out today an other author whose book I may like 😉 ), I thank you for your attention to details.

    • TheSFReader says:

      As RDM states that’s more or less what DRMs are.

      (Technical rant start )
      The distinction is that the “key” is already on the user’s side : either it’s linked to their “account” (Adobe DRM system / B&N, or it’s linked to the hardware/software/account combination (Kindle). The user NEEDs the key to read the book : without it he wouldn’t be able to transform back gobbeldygook to your book’s content.

      Without the key, the file stays gobbeldygook.

      But there is NO way to keep the reader from using the key (if you want to keep him reading).

      Even if the key stayed hidden, (the DRM providers have found no way to hide it well enough), hackers (I won’t say pirate here, hacking the DRM doesn’t mean giving the book away) would find a way to get the book “after” it has been unscrambled, and before it goes to screen.

      Even if the software managed to protect the book until it gets to the screen, hackers would manage to get it from the screen.

      Even if the software managed to prevent the hacker from reading back from “screen”, all a reader would have to do is put a scanner in front of his ereader, and OCR the scanned pages pages to re-create the book.

      The DRM battle IS LOST before having begun, unless you wish to sell useless gobbeldygook and no way to read it back. (I don’t know how that would work to keep interested readers though).

      Oh, and if instead you decide to not distribute ebooks at all, don’t think you’ll be protected from pirates : they can (and DO) scan paper quite as well !
      (Technical rant end)

      OK, regardless of the way the DRM has been bypassed, by someone determined enough, suppose he puts it (This time YES, he’s a bad naughty pirate) on the downloads sites. Suppose 1 person does it (out of you 1000 000 readers : only one is disloyal), and your book is available to the whole internet !

      DRM has (despite all the snakeoil resellers) NO effect on “determined” piracy.

      Where it can have effect is against “casual” copying, someone wanting to share his book with a friend (or list) or family.

      Other than its inefficience against determined people, DRMs have a few other drawbacks :
      – It has a “hidden cost”, as it needs dedicated software to be managed.
      – DRMs forbid conversion to a different format, hence will disable readers not using a “format compatible” ereader to convert and read the book on their chosen software/hardware.
      – Sometimes, due to software problems, legitimate customers loose access to the “protected” books they’ve bought.
      – Sometimes, the DRM scheme depends on a service, and if that service is stopped, the customer looses his content. (http://en.wikipedia.org/wiki/Digital_rights_management#Obsolescence)
      – Sometimes, the a DRM is not attached to a user account, but also to a specific hardware, and in case of hardware failure, loose access to the content.
      – Some customers choose (either due to past bad experience, or to ideological reasons) to not buy DRMed books, or at least use the DRMed status when deciding to buy or pass.

      If some user finds himself unabled to read one of his legitimately bought version due to DRMs, where do you think he will go and find it ? On the dark side of the Net. Where he’ll find the content he wanted, without DRMs, and with all the OTHER content, from other authors, for “free”. Talk about educating him to be honest !

      My own pet pieve about DRMs is “posterity” : by encrypting the books, you MAKE SURE you children/grand-children/historians in a few hundreds of years won’t be able to read them back. Talk about short-sightedness !

      Does all this rant mean that I approve on Piracy ? Not in the least. But whatever the question is, DRMs is a wrong answer, or even more the start of a bigger problem.

  14. Emily DB says:

    Hi there!

    There was recently a discussion of these issues (compensation of artists, illegality or not of copyright) over at The Rumpus. Richard Nash makes some points about the legality of file sharing. Most of what I talked about is compensation of artists, which I think is the real quandary. I don’t think file sharing should be illegal. Like you, I’m a tremendous fan of libraries, so I’m most interested in projects that focus on downloading as distribution of information (and not as a way to earn a sleazy profit).

    A lot of people are talking about this issue right now, and it’s easy to see why. Project like the Digital Public Library of America (DPLA) may in future provide an unlimited resource (it’s difficult to know – the project is still experiencing growing pains!). One of the topics most hotly debased on the DPLA list is whether – or more specifically, how – artists (and perhaps publishers, too) can be compensated and thus continue to work.

    There are some interesting potential solutions emerging for the issue of (in the case of books), author compensation (and these are without limiting the amount that a work can be shared in any format). Richard Stallman suggests a model based on the popularity of a work, and crowd funding models like Gluejar pay the author (and publisher) before the book is ever published (so it’s ALL advance, no royalties). These are still nascent and need work, but I think the point is that not only is it possible but that there are people out there toiling to make it work, in part because they want to experience more great art, and they know that money helps the cause.

    Thank you very much for the interesting post!

    • jemckenna says:

      and thank you for a very interesting contribution and links.

      We have to talk about this stuff and find a way forward – and the better informed we all are, hopefully the better the policy that results will be. If only because we can tell the out-of-date legislators exactly how they’re going wrong – as with the SOPA/PIPA debacle!

  15. Here’s a link to a story about someone’s artwork being stolen, from the Forbidden Planet blog. Not entirely relevant to what you’re discussing here, but does highlight some other issues about copyright, and people’s ignorance of it.


  16. Brilliant blog, and you have made all the points I made briefly on authorlink.. Well done for saying it!


  17. jemckenna says:

    Discussing these issues elsewhere, photographer Paul Ellis (who’s very active protecting visual image copyright) has pointed me towards this legal judgement


    wherein a lot of the excuses and evasions about what filesharers and ISPs might be reasonably expected to know or to do, practically and technically are addressed.

    It’s pretty dense reading but worthwhile if you really want to get your teeth into these issues.

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