The New Pirates: Book Digitization and the Future of Publishing - Fordham Intellectual Property, Media & Entertainment Law Journal
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The New Pirates: Book Digitization and the Future of Publishing

The New Pirates: Book Digitization and the Future of Publishing

A computer-like object just doesn’t replace a book: the feel of the paper, the smell of old books, the ripped cover on the book read over and over again.  However, the ability to lessen one’s luggage weight by loading all those books onto one device is tempting.  As the e-book technology that makes this possible develops, so too do the ways to pirate e-books.  Motoko Rich pointed out in a New York Times article that while those in the music and filmmaking industries are used to dealing with illegally posted material, “for authors and their publishers in the age of Kindle, it’s new and frightening territory.”1

Digitization of books poses a general problem for the publishing industry.  Traditional books have production costs and therefore, higher prices; the lower priced e-book with little to no production cost could eventually overhaul the entire business.2 But as industry players work to solve that problem, there are ways to slow or prevent the immediate issue of e-book piracy: delaying the release of an e-book;3 refusing to create an e-book at all;4 protecting files with digital rights management (DRM);5 and making more e-books available.6 What’s clear is that the publishing industry cannot go the same route as the music industry, which alienated its customers.7 The publishing industry should employ the short-term measures of diligently requesting that file-hosting sites remove illegally posted material, promoting the e-books that are available, and permitting consumers to load e-books onto multiple devices; thus allowing the industry to focus on effectively strategizing and transitioning to a world where e-books are more ubiquitous.

While some argue that e-book piracy is nothing for the industry to worry about,8 it is becoming more widespread.9 For example, immediately after the release of Dan Brown’s The Lost Symbol, “pirated digital copies of the novel were found on file-sharing sites . . . .  Within days, it had been downloaded for free more than 100,000 times.”10

Many file-sharing websites post a list of information required in order to remove unauthorized uses of copyrighted material.11 However, requesting the removal of individual posts can be a time-consuming task.  One publisher, John Wiley & Sons, employs three full-time staff members to trawl for unauthorized copies.12

Authors are not always so invested in removing illegally posted material and their views vary on the subject of e-book piracy.  Stephen King, for example, posited to Rich that it seems useless to pursue e-book pirates: “My sense is that most of them live in basements floored with carpeting remnants, living on Funions and discount beer.”13 However, other authors threaten, or follow through with, suits and legal action against such posters.14 Still other authors view e-books as a way to find new readers, as does novelist Cory Doctorow, who believes his “problem isn’t piracy”15 but “obscurity.”16

By policing and alerting the host sites to copyright infringement as John Wiley & Sons does, publishers and authors make it clear to e-book pirates that they are committed to protecting their rights.  Unlike the music industry, the publishing industry is not garnering bad publicity by pursuing its customers, but rather enlisting only a third party’s assistance.  By making e-books available as Doctorow does, authors and publishers can make their customers feel included in the process of book digitization and so lessen the effects of piracy.  As one consumer technology analyst noted, “If electronic books can’t be had legitimately, others will step in and fill the need; and once a pirate industry is established, it probably won’t go away easily.”17

In making e-books more widely available, the publishing industry needs to be aware of their customers’ needs.  Many households have several computers, cell phones, and may someday have multiple e-readers.  Of course, digital rights protection systems (DRM) prevent the piracy that inspired this post in the first place, but it can also limit readers’ ability to access their legitimately acquired e-books on multiple devices.18

Simple solutions include limiting the number of devices that can be used or prohibiting proprietary DRM.  Amazon, for example, has a system that “could become a problem if the Kindle goes bust—then all those people who bought Kindle eBooks with DRM will have no way to read them because no other device can open the files.”19 This will become an issue of greater importance as e-book technology develops and expands.  In the meantime, publishers and authors should push e-book sellers to allow customers to read their e-books on several devices owned by the same household.

The publishing industry has much to learn from the music and film industries’ recent past.  By addressing e-book piracy in a way that includes their customers in the process, the publishing industry will have more ready and willing buyers of books of all kinds even though piracy will likely never be completely eliminated.   And by managing the current piracy problems in this way, the industry frees itself to prepare for the digitization of books, a luxury that the music and film industries did not have.
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1 Motoko Rich, Print Books are Targets of Pirates on the Web, N.Y. TIMES, May 11, 2009, at B1.
2 See Jeff Rivera, Richard Curtis: Book Publishing 10 Years in the Future, MEDIABISTRO, Dec. 31, 2009 (listing the ways a literary agent believes the publishing industry will change).
3 Matt Frisch, Digital Piracy Hits the E-Book Industry, CNN, Jan. 1, 2010.
4 Id.
5 See Tom Spring, E-Book Piracy: The Publishing Industry’s Next Epic Saga?, PCWORLD, Dec. 23, 2009 (explaining that while DRM may be a definite way to prevent piracy, publishers and consumers can be frustrated by its use).
6 Id. (providing examples of pirated e-books created when authors and/or publishers do not publish an e-book version).
7 See Rich, supra note 1 (quoting the chairman of Bertelsmann on the effects of iTunes and Napster).
8 See Frisch, supra note 3 (citing statistics that e-reader owners purchase more books).
9 See Jim Milliot, Attributor Study Finds Pervasive Online Book Piracy, PUBLISHERS WEEKLY, Jan. 14, 2010 (highlighting the findings of a report released by a company that tracks illegally posted books).
10 See Frisch, supra note 3; see also Spring, supra note 5 (showing that many best-sellers are available on unauthorized sites).
11 See, e.g, File Rack, Terms of Service, http://www.file-rack.com/page/tos (last visited Jan. 19, 2010); Google, Digital Millennium Copyright Act (last visited Jan. 19, 2010); RapidShare, Support (last visited Jan. 19, 2010).
12 Rich, supra note 1. “Gary M. Rinck, general counsel [of John Wiley & Sons), said that in the last month, the company had sent notices on more than 5,000 titles—five times more than a year ago—asking various sites to take down digital versions of Wiley’s books.” Id.
13 Id.
14 Id. (noting that one author “pursued more than 240 people who have posted his work to the Internet without permission”).
15 Id.
16 Id. (“Cory Doctorow . . . offers free electronic versions of his books on the same day they are published in hardcover.”).
17 Spring, supra note 5.
18 Laura Sydall, Will E-Book Anti-Piracy Technology Hurt Readers?, NPR, Mar. 25, 2009.
19 Id.

Tammi Guthrie