Piracy and Copyright

Storytelling by Tumisu from Pixabay

At least twice a week, often more, I receive a Google Alert about the availability of one of my books, most recently titles in the Anita Ray series. Below the title might appear a web address that is unrecognizable (numitas.ga; gadsnela.cf; zilibega.gq, and more of the same) or the name of the supposed website that holds the book or even the edition. Apparently, there is a French edition of some of my books. I've had hundreds, perhaps thousands, of these Alerts, and I ignore them.

More recently I've been learning about piracy sites that hold copies for sale or loan. Open Library is one, and Kiss Library is another. I've sent take-down letters to the first one, and when I checked back, they had complied. When I returned later, some of the books were back up as eBook loans.

The first time I came across a piracy site and found my books there I was understandably upset. When I wracked my brain for how to counter this, I got a headache. Now, when I read threads with posts from writers who've just discovered this worm in the book pages, I recall how I felt but rarely engage. 

Most of the Google Alerts are, in my view, forwarding an effort to install malware on my computer. If out of curiosity I click on any of the fields, I'm sure I'll go to a nonsense page and, frustrated, log off, but by then it will be too late. The worm will be inside my computer. If I actually do reach a site with a pdf of one of my books, I expect it will be riddled with errors from some auto-correcting program, perhaps missing chapters, and be overall unreadable.  Any reader who goes this route in getting free novels deserves what they get--mostly nothing.

I've been thinking about this a lot lately because of the failure of the powers-that-be, mostly Congress, to take any action to protect the work of writers (and other creative workers). But I'm no longer surprised, not because they're incompetent (which may be true but is not the issue here) but because as lawyers (and so many of them have law degrees) they learned early on that the intent of the founding fathers was to keep the stream of knowledge, books, etc., flowing into the United States. The founding fathers believed that a new country desperately needed to have new ideas and ways of doing things accessible to the young citizenry. Hence, in the beginning, only books produced in the US had copyright protection, and even that was weak. Anything published overseas (with rare exceptions) could not be copyrighted in the US.

This may be the thinking (or lack thereof) behind the failure to regulate early on the social media sector before each company/platform became such a behemoth that it may now seem un-regulateable.

Those who write the law to protect writers and others are by training predisposed to doing as little as possible, believing it is better to have ideas flow freely, disseminated widely, than prevent citizens from having access to them in order to benefit one person, the creator of those ideas. The mindset of Congress does not favor the creator.

I don't know what can be done about this, but like most things, a growing rejection of the current thinking in Congress on these issues may wake up individual senators and representatives to eventually take action. But I'm not holding my breath.

The Writer's Day: Orphan Works

Over the last few months I’ve been writing a lot of guest blogs to promote my new book, writing about India, photography, food, plotting, and other aspects of my series. I have completed or signed up for 20 posts and have several more to do. I think every post has to be different, and so far each one is. I love the story behind this book, the story in it, and writing it. I always seem to find something new to say about it, but in this post I'm doing something different.

On my own blog I write all sorts of things, including about a toaster that died and the gifts a dear friend left behind after her death. Sometimes I rack my brain to come up with something, and sometimes I come up with nothing. Last night, I listened to five writers talk about blogging and how they use it, their expectations and surprises. The results for all of them have been a surprise, edifying and fun and often unexpected. The program was presented by the Gloucester Writers Center and held at the Rocky Neck Art Colony Center.

So, today, I’m adding in a little of what I as a writer do every day. The first thing on my desk this morning is to report on the effort in Congress to consider legislation governing so-called orphan works of art and literature. This legislation would allow a publisher, journal, or anyone else to take over a book, for example, and reprint it for their own financial benefit if they deem the book to be an “orphan.” What is an “orphan” book? This is a book whose author, or copyright holder, cannot be located.

Library of Congress, Washington, DC

Every writer who reads this should be fully alert by now. Just how does someone decide the copyright holder cannot be located? Who decides if sufficient effort has been made? If due diligence has been conducted? Therein lies the problem. We have already faced this challenge in one form, and the Authors Guild and other writers’ groups, including the National Writers Union, beat back efforts to claim “orphan” works for another project. Now the discussion is back.

Today is the last day for comments to the Library of Congress on this topic. If you want to offer your opinion, you can do so online. You are asked to complete a form and attach your comments. The comments must be received by 5:00 pm today.

http://www.copyright.gov/orphan/comment-submission

To learn more about why this matters, go to

http://www.nwu.org and scroll down to the center of the page.

It is common to say that writers write. Indeed we do. But we also attend programs to learn more, lobby for or against legislation that affects us, send off books for charity events, teach classes, and read to the dog if no one else is around to listen to our current WIP.

Litigation and . . . time

In 2005 I learned about a class action lawsuit against Google through a writers’ organization. This one is different from the current lawsuit against Google for unauthorized digitizing of the world’s library. The one I’m talking about here is Literary Works in Electronic Databases Copyright Litigation. I received a notice yesterday (actually three notices by mail) telling me that I had filed three claims, two were disallowed, but the third was being processed. I filed my claims within the deadline and sent paper backups. In 2005. In the interim I heard not a word.

I remember filling out some of the paper work for this claim. Even more vividly I remember going through my files and listing every piece of published writing done within a certain period, and being very surprised at the number. I hadn’t realized I’d been so prolific in writing nonfiction on a variety of topics. A lot of the works were book reviews, and I have no idea how those will fare in this claim. I also recall receiving an email that certain works wouldn’t be allowed because they hadn’t been copyrighted. I sent them copies of the copyright registrations by registered mail.

This is the second class action lawsuit that I have found myself benefiting from. A few years after I published an article in Clues: A Journal of Detection (1996), I received a letter stating that the university had sold the rights to articles published in the journal without receiving permission; a group of writers (as I recall) had sued, and here was my piece of the settlement. In the envelope was a check for $750.

I don’t know what the settlement in this current lawsuit will be, but I do know that some of it will depend on my registration of copyright with the Library of Congress. While it is true that today a writer owns the copyright of a work the minute it is created, it is also true that those who register the copyright with the Library of Congress will collect more in the way of monetary damages than those who do not register their copyright.

I did nothing to bring about the settlement with Clues. I filed a lot of paper for the Database Litigation but I had nothing to do with filing the lawsuit and following up. I occasionally receive a request for information on whether or not I flew a certain airlines within a certain period, and after that I might receive a small check as part of a settlement. I’ve occasionally received a voucher for a small amount of money.

After the Snowden and NSA debacle, no one should be surprised that someone somewhere out there is misusing someone else’s information or work but it is still a surprise to me—a pleasant surprise—to find that others are fighting back, even as I wander about in ignorance, and that I have been included in the settlement.

And as a result, I will continue to register my copyrights even when others tell me it’s a waste of money. And I will also continue to pay my dues to the various writers’ groups who keep track of these things like lawsuits and let their members know that it’s now time to sharpen those fingernails and get clacking on those keys, and file those claims.

I don’t know if I’ll get much in the way of compensation, but I’m looking forward to getting a check in the next . . . few years.

The litigation is in the United States District Court for the Southern District of New York, in re Literary Works in Electronic Databases Copyright Litigation, M.D.L. No. 1379.

Just how much of your book do you own?

I have been watching the Google lawsuit and settlement talks play out over the years, and with each announcement, mostly in favor of Google, I went from anger and disbelief, to confusion, and now to a glimmer of understanding of how writers could find themselves not quite owning their own work. I stumbled across this insight while reading Robert Spoo's book on how copyright protections (or the lack of them) affected the introduction of modernist literature in the United States, with a focus on Ezra Pound and James Joyce. 

Without Copyrights: Piracy, Publishing, and the Public Domain, by Robert Spoo (Oxford University Press, 2013)

I came across this book by accident. When I picked it up in a local library after being drawn in by the title I expected something that would seem relevant to me as a writer grappling with the changing environment for commercially and self-published writers. The challenges facing writers opposed to Google’s digital copying program are nearly overwhelming, and I was stumped to understand why courts found it so easy to rule against writers and in favor of Google and others. I still don’t understand completely, but I have a better understanding of how we got where we are and why Google has been successful so far.

Robert Spoo, well recognized in his chosen field of copyright law and literature, is interested in how copyright laws, or the lack of them as we understand them today, interacted with modernism in literature. He takes for his example the writer James Joyce, and his attempts to have an unexpurgated Ulysses published in the United States.

Spoo’s history of copyright in this country is an eye-opener. Writers often talk about books in the public domain as though they had drifted into this ocean as a result of neglect or the passage of time or creation by the US or state government. But the public domain was in fact created by Congress through earlier copyright laws to ensure that those involved in the book business in this country had work here and didn’t face competition from outside the country. The only books that received copyright in this country were those that were printed and bound here, manufactured here; all others, no matter where they were published or by whom, were in the public domain. Once in the public domain, which occurred within a very short time after publication elsewhere, the book was fair game for anyone who wanted to publish it here. Writers who published abroad could gain a copyright here if they met stringent requirements, but otherwise the copyright failed in the US. This was the case well into the twentieth century.

Publishers who wanted to publish work by someone who had already published it abroad faced the Wild West of publishing for decades. In response to this chaotic world they developed something called the “courtesy of the trade,” or “trade courtesy.” This phrase referred to a gentlemanly agreement among the larger, more established publishing houses to let the first to claim the work to have it. If Publisher X announced through a magazine ad or in some other way that he was going to publish the work of a popular British poet, his colleagues left him to it. The trade courtesy was an understanding among publishers to not poach on others’ writers from their publishers, and to not try to undercut other publishers with cheap reprints. None of this was legally binding, and no one could stop another publisher who ignored the unspoken rules.

A publisher who ignored the rules was called a pirate. The term is not accurate because the publisher operating outside the rules of trade courtesy wasn’t breaking any law, but some felt so strongly against what he (it seems mostly a he) was doing that the term was used freely. Publishers who wanted to get ahead published anything that wasn’t protected by copyright, which meant almost everything published overseas. One of the more famous of these publishers was Samuel Roth, who hoped to publish James Joyce’s work, especially Ulysses.

A publisher who published with no regard to the gentlemanly agreements of others faced no legal repercussions but plenty of social costs. He was shunned and subjected to unrelenting negative gossip and boycotting, others published cheap work to undercut his prices, and writers might sue to get any monies they could extract. Public opprobrium could drive a publisher out of business.

Into this topsy turvy world came Ezra Pound and James Joyce. Joyce bitterly resented anyone taking his book and publishing an altered version, one cleaned up for the censors. Pound believed in disseminating literature, and in the end chose that over Joyce’s right to control his publishing in its entirety. When we think of Joyce’s lawsuit to get Ulysses into the US, we think he was challenging the prudish laws of the US. But in fact, Joyce first sued Roth for using his name for advertising without his permission. Joyce sued for damages he felt he must have suffered by not having control of his work, but in the end Joyce and Roth settled by agreeing to a consent decree (dated December 27, 1928). But even this had a very limited effect. This decree, according to the author, and despite Joyce’s grandiose claims, “has not been cited by a single court in a reported case” (p. 224). Joyce thought this decision would give authors their natural moral rights in the ownership of their labor, echoing Locke and European attitudes, but US courts and legislation have never gone this far (p. 225).

The second step in getting Ulysses safely into the US, where Joyce’s preferred publisher, Bennett Cert, could publish it, was to have it seized by Customs. Once this happened, the book was subject to the Tariff Act of 1930, and the Cutting amendment. This amendment made the object confiscated the defendant in a case, and forced the government itself to defend its actions. The sender and the receiver of the item in question, in this case Ulysses, were not part of the case. During Prohibition, according to Spoo, lawsuits were often filed against the truck carrying bootlegged liquor and the like.

Ulysses was confiscated, the case went to trial, and Judge Woolsey decided in favor of the book, in 1933. The book was free to enter the US, but it was still without copyright. Joyce’s great work was now subject to the trade courtesy practices that he and others abhorred, but he had no choice.

This is a story of stunning twists and turns and surprises in getting Ulysses published in the US, not the least of which was Joyce’s attitude towards his lawyers’ bills (he refused to pay them).

Equally surprising to me as a writer is that copyright as I have come to understand it only became law in 1976. Legislators have continued to tinker with copyright law so that even now the public domain is occasionally given a great book and deprived of another for a few years. It is a patently crazy system. The US didn’t sign the Berne Convention until 1989, when the US finally agreed to recognize foreign copyrights and afford works so protected overseas the same protection in the US. There is more, but by now you should have the idea that the history of copyrights in the US is anything but tidy and linear.

The text is dense, but the writing is free of academic jargon, in some cases delightful. The author makes every effort to explain the legal niceties in simple, clear language. I learned more about Ezra Pound and James Joyce in this book than I ever did in college English literature classes. Highly recommended.