Flip Side: When Pirates Roam Freely

March 2nd, 2007 · 13 Comments
by Kassia Krozser

Okay, once again: piracy is bad. It is one thing for an artist to willing, knowingly, and, most importantly, understandingly give their work away for free. It is another for an entity to offer copyrighted works in flagrant violation of all laws and objections by copyright holders. Case in point: eSnips.

eSnips is fully aware that they are posting copyrighted works that violate laws

As we write this post, one of the titles featured as a “full release” version on the site is Harry Potter and the Half-Blood Prince. We all know that J.K. Rowling has refused to offer her work in electronic format. Thus, it is quite clear that this work was posted in violation of any licensing agreements. This version does not appear to be a scan of the final novel, meaning someone either retyped over 800 pages of text or the file came from the publisher’s offices.

This is against the law. Of course, since the company appears to be based outside the United States, things might get murky. However, it is hard to argue that they are flying under the guise of fair use. Posting full works is never “fair use”, though some might argue that the first sale doctrine applies. We think that won’t fly, given the Harry Potter example above. Nobody ever purchased a legitimate electronic version of this book.

eSnips is fully aware that they are posting copyrighted works that violate laws. They have been called out by the Romance Writers of America. RWA won a temporary victory against eSnips, but a quick scan of available files (page 4, but any one will do) shows that members’ works are definitely being uploaded to the server; said scan also reveals another version of the Harry Potter title noted above. There are also quite a few works that live in the public domain on the list.

In theory, the eSnips concept is great; in practice, it’s a mess. YouTube limits user ability to upload entire works (sure,yeah, people do their darnedest to work around that limitation). eSnips apparently has no limit on file size, as long as users don’t exceed their 5 gigabyte storage limit.

The weird thing is that eSnips is trying to position itself as a legitimate business, albeit one that doesn’t seem willing to curry favor with content owners. The principals of the company are not hiding and they actively discuss the features and functionality of their service. There appears to be money behind the venture — so why are they opening up their service to potential lawsuits? J.K. Rowling’s attorneys (or her publisher’s, take your pick) will surely be calling today. The current strategy is lose-lose for eSnips.

We don’t believe that websites should be obliged to police the activities of people who should know better. But we do believe that once a company has been made aware of flagrant violations of the law, they should re-examine current policies and take steps to discourage piracy. We don’t see that being done here.

We are not letting the publishers of these works off the hook either. While Rowling doesn’t like ebooks, there’s clearly a desire from a segment of the reading population who do. And they will continue to pirate her works in absence of better alternatives. One key tool in fighting piracy is making piracy the more expensive solution.

Have a lovely weekend!

File Under: The Business of Publishing

13 responses so far ↓

  • Brenda Coulter // Mar 2, 2007 at 1:19 pm

    While Rowling doesn’t like ebooks, there’s clearly a desire from a segment of the reading population who do. And they will continue to pirate her works in absence of better alternatives.

    If the Harry Potter books had been released in electronic format, we would see more illicit e-books, not fewer. As you point out, it took some real effort to produce that file. How much easier it would have been to copy from a legitimate e-book! Had such e-books been made available, we’d be seeing copies everywhere, in all kinds of formats. And we’re not seeing that with the HP books.

  • Kassia Krozser // Mar 2, 2007 at 2:02 pm

    I would disagree because the effort involved in obtaining pirated materials generally exceeds the effort involved in buying a legitimate copy. There will always be people who want something for free, yes. But most people understand that they need to pay for things — until the price, either in effort or actual amount paid, exceeds what is deemed to be fair. I used the examples of libraries having free books the other day. It’s not enough that the books are freely available because there are many other factors that are weighed by the consumer. Used bookstores arguably have lower prices, but first-sale stores continue to operate.

    In this case, a legitimate business is giving its users a chance to post clearly pirated materials. Most legitimate businesses do not engage in this practice; and the illegitimate ones are harder to locate and work with than the effort is worth. I don’t think J.K. Rowling’s stance is particularly well-considered, but it’s her stance, and this is a clear violation of her rules. The market segment that wants ebooks is still relatively small, but they do exist.

    There is also the perception that every act of acquiring pirated materials results in a loss of sales. Some sales are lost, yes, but many of those so-called lost sales wouldn’t have happened in the first place. When we talk about piracy, we need to look at the whole host of issues, and that includes the people who obtain pirated materials, to find solutions. Otherwise, the problem won’t ever be addressed in a manner that makes content owners and consumers happy.

  • SusanGable // Mar 2, 2007 at 6:00 pm

    Kas said: “Some sales are lost, yes, but many of those so-called lost sales wouldn’t have happened in the first place. ”

    Kas, just because they wouldn’t have BOUGHT a bag of potato chips from the store doesn’t mean they should lift a bag of potato chips from the store, right?

    So I don’t care if they wouldn’t have bought my book – if they wouldn’t have bought it (or at the very least, borrowed it in a legal fashion), they don’t belong reading it.

    If I want to give it away, I will. Like you said, it should be my choice to give it away, not someone else’s.

    Believe me, there are days when I’m unhappy enough with the business aspects of publishing to consider giving it away.

    No one commented on my comment the other day where I mentioned that I would probably not choose to buy a copy of a story I’d already read because — I’d already read it. (g) The mystery is gone. I’ve already eaten the snack. (g)

    So I’d be interested to know how many people out there have gone out and bought a copy of a novel that they’ve already read for free? (Because you borrowed it from a friend, or the library or whatever.) Novel, not a non-fiction, because I think if there’s a reference book or something you borrow and discover it to be very useful, then you’re likely to go out and buy your own copy.

    Or is the theory that those people (the ones who read the free copy off the internet) buy your NEXT book? If that’s the case, I want to know how there’s supposed to be a next book when the writer’s numbers are so low the publisher decides to pass on the next novel. I’m just trying to wrap my mind around the concept. I’m fully prepared to admit I’m wrong, but someone’s going to have to enlighten me. (g)

  • SusanGable // Mar 2, 2007 at 6:05 pm

    Oh, PS – I can easily see writing some specifically to GIVE away on the net — like a short story or something. Anything that could be used primarily as a marketing tool. I’m just not in favor of giving away the actual copy of the book that I’ve got on the shelf. (Until and unless someone convinces me otherwise.)

  • Kassia Krozser // Mar 2, 2007 at 7:24 pm

    I buy books I’ve already read — either for free or previously purchased but misplaced. I’m a re-reader in a big way. And, yes, some people believe that giving away work now will encourage purchases in the future. I cited Cory Doctorow and another gentleman the other day (sorry, racing around and mind is like a steel sieve), both of whom have actually found success with the dual give it away/sell it model. I understand it’s not for everyone. It’s a risky proposition. I’m not sure I would do it, but, I guess, I do already. Nobody’s paying me for what I write (except the advertisers, to whom I am eternally grateful).

    Getting back to the lost sales thing — maybe I didn’t make my point very well. Various industries cite numbers relating to “lost sales” due to piracy. They throw around big numbers, and it seems like piracy is a huge boogeyman. But the question that remains unanswered is how many sales are really lost? I do not ask this question idly, and I have a pretty clear grasp of the ramifications of piracy — the lost dollars run up and down the distribution and production food chain; pirates who get into the mindset that they’re only hurting big corporations really don’t understand that those big corporations feed a lot of mouths.

    Yeah, I’ve spent a lot of mental energy thinking about piracy (and I’m not ashamed to admit that I used to collect articles about the issue to support my position that dollars spent on anti-piracy enforcement are good things — this was in my former career, naturally).

    However, I think a key aspect in fighting piracy comes from making it pirated goods harder and more expensive to obtain than legitimate goods. You and I have talked about how expensive ebooks are, especially when you consider what you’re getting. Charging a hardcover price for an ebook sends a negative message to consumers. People have shown that they’re willing to pay for electronic media — case in point is the wholehearted embrace of iTunes. Yes, there are still people who work hard to get their music for free; if you listen to their reasons, you’d discover that the price is just one driver. But when iTunes launched, underground sources like BitTorrent didn’t go away. iTunes won customers through pricing and ease-of-use and selection. The customers see a benefit, and I think they use the service for this reason. Digital music downloads still haven’t surpassed physical media, but iTunes has sold, what?, a billion units?

  • Gillian Spraggs // Mar 3, 2007 at 5:14 am

    I often buy fiction that I have previously borrowed and read. Some books, I know when I read them that I shall want to read them again and again. Then there are novelists whose work I first discover in a library, or on the recommendation of a friend who lends me one of their books. If I really like the first book of theirs I read, I will go out and buy the others. I cannot believe that this is at all unusual behaviour.

    Anyone who thinks free libraries are a hindrance to book sales is not thinking very clearly. They play a huge part in forming and encouraging the reading habit.

  • SusanGable // Mar 3, 2007 at 8:10 am

    Price! Yes, that’s one of my pet-peeves about ebooks. I’m becoming a fan of the ebook slowly, just because I do adore the convinience it can offer. But the prices deter me big time.

    Gillian, I love libraries. Spent loads and loads of time in them growing up, still make use of them somewhat. I do love having my own personal library even more. (g) My hubby came into my office about a week ago, took a look at the shelves in here, and just shook his head.

    Truthfully, I’m a book addict. (sigh) As vices go, though, it’s not such a bad one. (g)

  • Lauren // Mar 3, 2007 at 2:23 pm

    Of course, the author doesn’t set the price for her books (print or ebook) so I don’t find price a very powerful argument for piracy at all. I can’t walk into Borders and lift a copy of a paperback off the shelf and walk out with it without paying because I think 9 bucks is too much.

    Nor do I find it a powerful motivator to hear that if my books weren’t repeatedly stolen online those thieves wouldn’t have bought them anyway. I don’t care, that’s not the point. It’s not a choice between stealing from me and not buying, they’re not buying at all to begin with.

    I don’t mind used bookstores. I don’t mind when my readers trade copies of my paper books either. That’s a single book by single book issue and yes, I believe it’s great promotion for me because people listen to their friends’ recommendations (I do). I love libraries too (and use them all the time).

    But an ebook can be downloaded an infinite number of times. It becomes ridiculously easy to steal in high volume. And frankly, I can’t blame Rowling when that’s what I deal with. If I have to deal with dozens of these types of loops and thievery rings every month, I cannot imagine what someone of Rowling’s popularity would have to deal with.

    I give away copies of my books on a monthly basis, and I believe quite strongly (and with some evidence) that this is a wonderful way to gain readers who come back for your next book (or your backlist) but the difference is that *I* (the copyright holder) make the choice to give the book away. It’s not stolen from me.

    I’m sorry, this is long but this is a topic that drives me crazy. I had a person tell me angrily that she’d never read one of my books again after I sent her a cease and desist for putting my books up for free download. One of the titles there had been downloaded 250 times. If she never reads me again, hopefully she’ll never steal from me again either.

  • Nora Roberts // Mar 4, 2007 at 5:19 am

    ~If she never reads me again, hopefully she’ll never steal from me again either.~

    Couldn’t agree more.

    Libraries delight me, used book stores are fine by me. And stealing is stealing.

  • Gillian Spraggs // Mar 4, 2007 at 7:36 am

    Sorry, Susan, on the subject of libraries I evidently misinterpreted something that you said.

  • SusanGable // Mar 4, 2007 at 8:05 am

    Lauren, I wasn’t using price to excuse theft.
    Hey, the price of really great diamonds are beyond my reach, but that doesn’t mean I go and steal them. (g) I do without them. LOL.

    I was using price as the reason I don’t buy ebooks. If I have to pay as much for the ebook as a “real” book, then thanks so much, I’d rather (FAR rather!) have the real book.

    I watched one pirate on ensips try to excuse her behavior by saying the publishing companies make so much money. And this person claimed to also be a writer. Hey, go write your own stuff and give it away then. Keep your hands off MY stuff.

    Anybody read Chris Anderson’s The Long Tail? I’m working my way through it now (I’ll be hearing him speak mid-March.) and it’s very interesting reading — but one of the points seems to be that with this Long Tail model, there are more and more people who create content for reasons other than money. (The old “I just want to be read!” reasoning. And while I said earlier that there are moments when I consider just giving it away, I’ve also said before, “Call me a ho, but I want to get paid for my work!” LOL.)

    To me, that didn’t bode well for the mid-listers.

    But he also makes excellent points that relate to publising — like consumers want variety that they’re not getting from the “normal” channels. (I believe BookSquare has mentioned that, oh, a million times or two.)

    The fact that we’re changing from the “mega-hit” model to this Long Tail model is really fascinating. I’m not done with the book, but it’s providing some interesting thinking material.

    But it does seem to me that Long Tail means places that distribute/provide this massive amount of varied content (Amazon, iTunes, eBay, NetFlix, etc.) will rake in the moola, but the content creators (particularly those towards the end of the tail), not so much.

    I mean, it’s great news for Amazon if they have a gazillion books that only sell one copy a quarter, but not so great for the author of that book.

    I’m looking forward to exploring all this stuff more, especially since I’ll be given the opportunity to ask Mr. Anderson questions directly.

  • Kassia Krozser // Mar 4, 2007 at 10:14 am

    Chris Anderson will also be appearing at the O’Reilly Media Tools of Change for Publishing Conference in June:
    Tools of Change for Publishing

    Yes, I’m totally going to be there!

    So many thoughts, so little caffeine.

    Lauren -while authors don’t set price, price is a factor weighed by consumers. When certain authors move from paperback to hardcover, a portion of their “gotta get it now” audience is lost. For some, that’s too high a barrier for entry; these consumers will wait for the paperback version or acquire the book in other ways. On the flip side, I have a friend who *only* reads hardcover. She does not read paperback. So, if the book isn’t available in that format, she’s a reader lost. Granted, her situation is probably rarer than the converse, but it does speak to my (oft-repeated) point that consumers want to interact with their entertainment media in their own way.

    There are thieves — I don’t like thieves. I don’t like piracy. Heck, I don’t even buy used books because I want my dollars to go to the artist (even as I, sigh, fully understand that the portion that ends up in an author’s pocket is very small; of course, I also believe that every author who signs a contract with a publishing house should be wholly informed about what they receive from each sale — publishing decisions should be made with all information…a rant for another day!).

    I would rather that efforts be made to stop true piracy than to stop readers from reading. So often, the decision is made to make books more restrictive through DRM (digital rights management). This simply doesn’t work. I am fascinated by your thoughts on sharing physical versus electronic editions of your work — I get it, but, being me, wonder if you’re sending mixed signals? Are you interested in expanding on this for another post? I think it’s a really compelling thought that many authors face.

  • Kassia Krozser // Mar 4, 2007 at 10:30 am

    Susan — Now to you (g). Anyone who excuses piracy because publishers make so much money, let me at ’em. I can shred that argument even without caffeine. I’m so good that I have a physical distribution and an electronic distribution version of my lecture. Hmm, this could be taken as a sad commentary on me, free time, and what I do with it, couldn’t it?

    I think the Long Tail concept is, actually, a boon for that author who only sells one copy of his or her book a quarter, because the fact of the matter is that the book is available. You, of course, know that once your book is off the shelves, that consumers start looking for the next big thing. This is the big head model — the hit model. It works in all industries. Using the Harlequin distribution model as an example, the “mega-hits” are the titles released in a particular month. They garner the largest portion of sales that month. The Long Tail is the stuff that we acquire through Amazon or order through the bookstore or buy second-hand. The final option doesn’t directly feed the author, but it’s part of the Long Tail distribution system.

    As long as your book is in print, then you have the potential for sales. The problem comes when your book is no longer available or — and this is going to be the bigger bugaboo in the future — in distribution limbo. That is, your publisher still has the right to distribute, but chooses not to make additional copies available due to minimal demand. Or makes just enough available to satisfy contractual requirements. Or the rights ownership chain is murky. There are so many ways to keep books from consumers.

    Again, another rant for another day.

    I believe that considering the Long Tail model when it comes to distribution can lead to increased opportunities for artists, rather than penalizing them. The first key is to consider what the mega-hit really means (and it’s very much market, media, genre, sub-genre, sub-sub…well you get the point..specific). And what the Long Tail means. If you’re a motion picture studio (where I have more experience), then there are many years where catalog pays the bills. Because if those potential mega-hits pull a Poseiden Adventure, well, that’s a lot of money to lose.

    In the meantime, however, (and I’m mixing studios rather liberally here), the Friends of the world continue to make money, long after their network runs have ended. The Star Treks and Gilligan’s Islands and I Love Lucys of the world may not top the cash flow charts, but they remain solid performers. And will continue to do so as long as they’re available. It’s all the little chips that make up the bulk of the tree. Hmm, lousy analogy, no?

    Thus, I think that creative thinking artists can find creative ways to extend the lifespan of their work.