In re Senate Bill 3804, The Combating Online Infringement and Counterfeits Act. Here is a link to the text of the bill.

Carolyn Is NOT a Lawyer

Ducks in A Row First

This bill purports to provide a remedy against internet domain names whose main apparent purpose is to host or disseminate copyrighted goods without the permission of the copyright owner.

Prosecution, enforcement and identification of these sites falls to the Attorney General. The public is in no way involved by the terms of this bill. Presumably, there would be some way for individuals to make a complaint about such a site, but that doesn’t appear in the language of the bill.

Upon receipt of such order, the domain name registrar or domain name registry shall suspend operation of, and lock, the domain name.

So, not copyright protection but a remedy against alleged infringement.

Also, please don’t mistake a domain registration for a website or a webhost. They are not the same animal. A domain registration is required in order to get a website (pages) on the internet for people to look at. A domain registrar may also host web content, but there are solid reasons why you should NOT host your website through the same company that provides your domain registration. (That’s a whole other post.)

Problems I see

Nowhere in the bill that I can see is due process given to the owner of the domain. The Attorney General can put a domain name on their list (which the bill requires them to maintain) and that’s it. There’s no provision for giving the accused domain owner the chance to argue there was a mistake. The domain registrar gets notified and is required to see that the domain no longer resolves.

I can see why people say this is censorship. What else do you call it when the government has the ability to take down your website with no notice and you have no opportunity to present a defense?

But the first thing that jumped out at me is the assumption that domain names are static creatures, as if taking down a domain solves the problem. (Dusting off hands) Spammers and malware writers have bots that go out and register domains on the fly, thousands and thousands of them. I promise you there will be sites that come down only to IMMEDIATELY (if not already) pop up at another domain. I laughed a little at the naivte.

What happens to the allegedly infringing material? Well, any geek (such as myself) will tell you that the files will remain on the server. The bill only prevents the domain name from resolving. This is good, because if the AG gets it wrong and the domain owner gets the opportunity to present their rebuttal, the site could be back up fairly quickly.

The downside, however, is that the files are still there. I would expect any reasonably competent pirate sort will get to the files whether the domain resolves or not. All you need is server access (legitimate or not). And if you own the server, well. There you have it. Right now this minute you could turn your desktop computer into a webserver serving up http content. With a few bucks, you buy a real server and do the same thing.

Anyway, a site that is maliciously hosting pirated material will simply mirror their server and be up and running at a new site within seconds. Heck, probably concurrently. Haven’t you ever noticed how similar the content is at these different sites? This is why. It IS the exact same content.

Again. Naivte.

I’m not saying don’t even try to do something, I’m saying most people who aren’t tech geeks, just don’t understand what they’re talking about, and if you don’t understand what you’re talking about how on earth can you write legislation that will actually achieve the desired goal. (Which is….?)

The bill is naive.

Effective? Maybe

Suppose this goes into effect and suppose that the due process issues are addressed — because remember in the USA we’re not supposed to presume guilt without giving the accused a chance to argue his or her case in the courts — this might be marginally effective. But probably not to the extent some people hope. The internet doesn’t work that way.

(And God knows, the law never makes a mistake, and there are never malicious or mistaken accusations . . . We all know that huge media companies NEVER make bogus claims of copyright infringement and force the takedown of YouTube videos that aren’t actually their content. This WILL be abused. I guarantee it. Companies WILL attempt to silence opinion they don’t like or damage competitors.)

Personally, I get a bit peeved when I see my books pirated and the host site is either selling the books (which is stealing) or serving up ads (which is profiting from goods they have stolen from my publisher if the book has not reverted to me.) So really, it’s not like I don’t see the issues. I do.

Let’s make a fine distinction that’s Being Lost

Traditionally, in the 20th-21st century, pirates did not operate for profit. They were ripping CDs or scanning books or what have you and providing them FOR FREE via Bit Torrent or some other Peer-to-Peer file sharing system.

But now we’re seeing that same content showing up on sites where the site operator is selling the content. This person illegally obtains the file and SELLS them to others and then keeps the money. None goes to the rights holder — which by the way is usually the publisher who has licensed the rights from the copyright owner. And no money goes to the author either.

I see these as two mostly different situations. The reseller of illegal files is, in much more likely to be taking away a paying customer from the person with the legal right to sell the content.

But wait! What if the illegal sale is DRM free and free of geo-restrictions? Might a reader decide to purchase the illegal copy because the legal one is so fundamentally broken from the reader’s point of view? Might a reader decide to purchase the illegal copy because the legal copy is on a website that is heinously hard to use (looking at you Sony store and eHarlequin.) That’s why Amazon is kicking your ass, by the way, even with the DRM.

I’d say the reader might be silly to pay for the illegal copy when they can get it for free, but that’s assuming they recognize that the illegal seller is, in fact, a crook.

Should Authors be Up In Arms about Piracy?

No. I don’t think so. Not yet.

Because the ONLY rigorous study done on this issue demonstrated that piracy increased sales of print books for all but the top selling authors.

If you are an author, there are better ways to spend your time than chasing down pirates. Maybe later there will be even better and even bigger studies that give us more insight and point us to actions that make sense. But right now, authors, if your books are pirated, maybe you should be glad.

What About Publishers?

My backlist is suddenly of value to me. There’s no sane reason for me to allow such titles to sit with a publisher who is doing NOTHING with them when I can now get my rights back and either sell my backlist myself or get it out there for free to seed my front list sales. Or maybe even both those things.

Publishers have done a very very poor job of identifying which small backlist titles are worth doing something with. By small I mean, not To Kill A Mockingbird but, say, out of print Romance titles that show up on Best Of lists or are constantly mentioned in reader discussions. Until recently, authors had no recourse even though they knew they had out of print titles readers are desperate to read. (Case in Point: Lord Ruin. Published 2002, OOP shortly there after, yet every month since the release of that book, I get emails from readers on that book and the lack of sequels to it. Every single month for going on 9 years. And those are just the people who trouble to email me.) It’s the long-tail and right now, authors can monetize/publicize it for themselves because Publishers are not even though they have the rights.

What About Readers?

In my opinion, right now readers are getting the short end of the stick. Publishers don’t have a handle on the impact of piracy and have no idea what to do to combat it. Or maybe they do. Maybe the reason they seem so ineffective at combating piracy is that they’ve secretly compiled the data and concluded that it’s not killing book sales. But I doubt that. They’re busy stressing over prints sales vs digital sales and cutting off their noses to spite their faces (I’m looking at you, Agency Model) and forgetting that they have a whole new avenue of sales in which people actually buy MORE of their product. Alas, the evidence suggests that publishers don’t yet get it.

My suggestion is that publishers make it so easy and painless to read books in any format and on any device that readers don’t need to go find an illegal copy. Publishers should never leave a reader muttering about how they can’t even read content they legally bought just because their old Kindle died and now they have Device X which is sexier. You’re failing if it’s trivial to find readers talking about how to crack your DRM so they can read and categorize their eBooks the way they want. And guess what? It is trivial.

Publishers, please, please please learn what metadata is and why you need to care. Listen to what READERS want.

Authors, stop spending your time going after pirates. Wait until there’s proof you’re being damaged. Right now, the existing proof is that you are not being damaged.

Readers, keep the faith. This will get figured out.

Last thoughts

This is a one-draft post. I’m sure I’ve missed things or possibly not been as clear as I should be. I’ll clarify if I can.

Comment away if you like.