From the President
Summer 2011
By Scott Turow
In September, the Authors Guild filed a suit against HathiTrust, the University of Michigan, and four other universities over their unauthorized digitization, storage and proposed use of millions of copyright-protected books. Google digitized most of the books at issue as part of its library-scanning project. While most libraries involved in the project permitted Google to scan only public domain works, Michigan, along with the University of California, the University of Wisconsin, and Cornell permitted Google to digitize copyright-protected books. As Google scanned the books, it made an extra copy for the participating universities. The universities then made additional copies of the digitized books and provided them to HathiTrust, a repository organized by Michigan. Michigan has put the HathiTrust repository on servers connected to the Internet, and provided an additional unauthorized set of digital books to Indiana University, which hosts a mirror site for HathiTrust.
This summer, Michigan announced an “orphan works” project to begin making some of these copyright-protected books available for downloading as digital pdf files, readable on any computer or tablet device, to students and faculty members at participating universities. According to Michigan, it would conduct a search for the owners of the rights in some of the books following a procedure it had developed. If Michigan failed to find the owner through that process, it would list the book as an “orphan work candidate” at its HathiTrust website. If the rights owner did not come forward in 90 days, Michigan would treat the book as an “orphan,” and the downloading could commence.
In July, Michigan released its initial list of 27 “orphan work candidates” that would be released by October 13. In August, other schools joined the project, and the list of “candidates” grew five-fold, to about 165 copyright-protected books. The student and faculty population that would be able to download unencrypted, digitized books released under the program had swelled to far more than 250,000. Even more schools began to express interest in the program.
Two days after we filed our lawsuit, we posted HathiTrust’s list of orphan works candidates on our blog, calling it “Orphan Row.” Many of you pitched in to help find leads to the owners of the literary properties on the list, and within two days, leads to 50 of the 165 rights owners were identified, many of them quite strong. At least four of the books had living authors, including J.R. Salamanca, a professor emeritus at the University of Maryland, who had just entered into an e-book contract for one of his books. Two of the authors had won Pulitzer Prizes: James Gould Cozzens (Harvard has his literary estate) and Walter Lippmann. At least three of the books listed as orphans were still in print. Identifying the surviving spouse or children of many of the authors of the books was accomplished through a simple online search.
Four days after we filed our lawsuit, Michigan announced that it was suspending its orphan works project, but pledged to improve its processes and re-launch it. This is unacceptable. The problem with the project wasn’t simply Michigan’s execution; it was the concept of treating literary property as abandoned without due process of law.
This lawsuit is not just about the orphan works project; it’s about the security of those seven million digitized books. If Michigan isn’t diligent enough to find authors who are signing e-book agreements and the literary estates of Pulitzer Prize winners, how diligent can it be about the security of those online servers hosting all of those digitized books? How are the backup tapes being handled? How close are we to having the bulk of the world’s valuable literary property released for file-sharing online?
The Guild was not eager to sue five major universities, but as our board viewed it, we had no choice. In recent years, many seem to have forgotten that literary property rights are genuine property rights, and that our founders deemed those rights so important that they wrote a copyright clause into the Constitution. Literary property is a vital part of our culture and economy; it should not be deemed abandoned because a search, no matter how diligent, fails to turn up the rights owner. And copyright-protected books should not be put at digital risk without the consent of the author.
Thank you for your help in identifying the rights owners of the books on Orphan Row. You’ll be hearing much more about this lawsuit in the coming months. ✦
“It's not just about "orphan works;" it's also about the security of seven million digitized books.”
- Scott Turow
Our nation’s founders gave Congress the authority to enact copyright laws “to promote the progress of science and useful arts.” Copyright laws do this by establishing legally protected markets for creative work. Those laws, and those markets, have worked beyond any reasonable expectation our founders could have had. Copyright’s markets have for hundreds of years encouraged authors here and abroad to spend countless hours writing books that they hope readers will value and the marketplace will reward.
Copyright’s markets have also drawn massive, irreplaceable investments from publishers and others in our intellectual and cultural life. Those investments have paid off. Our great research libraries, holding the carefully crafted thoughts, composed over billions of hours by many of our nation’s finest minds, are ample proof that copyright has succeeded brilliantly. So is our nation’s economic success, nurtured by the books that have educated and informed our citizens throughout its history.
We have, however, inadvertently instituted a policy that not only tolerates, but encourages investments in technologies and services that undermine our markets for creative work, nurturing an innovative, global, networked industry that directly profits from trafficking in stolen books, music, and movies. In a digital age, where tipping points are always close at hand, this pirate economy can subvert an industry in a heartbeat.
One is tempted to call it a vast underground economy, but there’s nothing underground about it: It operates in plain sight, as I will describe. Money suffuses the system, paying for countless servers, vast amounts of online bandwidth, and specialized services that speed and cloak the transmission of stolen creative work. Excluded from this flow of cash are the authors, musicians, songwriters and the publishers who invest in them. The only benefit to the individual author is a parody of a benefit: that the work of the author will be better known. Authors and artists have always been free to give their work away to build an audience if they chose to, but the choice was theirs, made with the prospect of making a bit of money in the end, and the expectation that there would be a functioning market to take advantage of. That prospect is disappearing before our very eyes.
Piracy has all but dismantled our recorded music industry. Any business plan in the music industry must now take into account that piracy is the rule, not the exception. In this environment, about the only value a legitimate provider can add is convenience and safety—the comfort in knowing that the downloaded music is genuine and contains no malicious code. Finding comparisons for the state of the recorded music industry is a near impossibility, because the situation has no precedent. It’s as if shopkeepers in some strange land were compelled to operate with wide-open side doors so that would-be customers can sneak out of with impunity, arms laden with goods. In that bizarre place, an ever-growing array of businesses that profit only if the side exit is used eagerly assist the would-be customers, leaving the shopkeeper with only one thing to offer paying customers: the dignity of exiting through the front door.
To get a sense of the scope of the problem we face, I’ll describe a couple of businesses operating in the pirate economy.
Case Study #1: BTGuard.com
BitTorrent, a landmark technological development for trading stolen digital works online, is wildly popular. It’s estimated to account for 18 percent of global Internet traffic. According to its website:
Though its defenders and promoters proudly point to a handful of legitimate uses for BitTorrent technology, a recent study* of BitTorrent traffic lends statistical credence to what many have suspected: BitTorrent is to stealing movies, TV shows, music, videogames and now books what bolt-cutters are to stealing bicycles. That study showed that of the 10,000 most popular files “torrented,” 63.7 percent were “non-pornographic content that was copyrighted and shared illegitimately.” Thirty-five point eight percent of the content was pornographic (the authors of the study did not try to determine how much of the pornographic material was pirated). Of the remaining 0.50 percent of the 10,000 frequently torrented files, 0.48 percent could not be identified. That leaves 0.02 percent—precisely two files out of the 10,000 studied—that were known to be neither pornographic nor infringing.
Although BitTorrent is terrific for sharing stolen works, the downside is that you might get caught: If a user’s IP numbers can be discovered, the traffickers in stolen creative works are at clear risk. BTGuard.com (tagline: “Anonymous BitTorrent Services”), an operation that cloaks torrents, and other companies have stepped into the breach.
BTGuard goes to great lengths to reassure users that their systems will protect anonymity; that users won’t get caught. At the bottom of its home page, along with “unlimited download speeds,” BTGuard promises “no records of usage stored.” At the bottom of every page at BTGuard’s website is a link to its privacy policy, which provides, in bold letters: “Netcrawled LLC [the apparent owner of BTGuard] DOES NOT collect your Internet Protocol (IP) addresses or customer usage.”
BTGuard wants its customers to know that not only is its service private, it’s also first-rate. It boasts that its servers are hosted “at Canada’s premiere carrier hotel in Toronto & at the world’s largest Internet exchange in Frankfurt, Germany.” It lists its “backbone providers” as including such industry leaders as “Level3, Teleglobe, Deutsch Telekom, [and] Global Crossings.”
So here, in a nutshell, is BTGuard’s service offering: It will arrange, for users in the U.S. and elsewhere, virtual, clandestine “meetings” in Canada for the exchange of large computer files via BitTorrent, and it will do so using state-of-that-art facilities. It charges $6.95 per month for this service and accepts all major credit cards. As with much of the support system for trafficking in stolen creative work, BTGuard is hiding in plain sight. The contact information shows it has an address at 151 Front Street West, Toronto.
Case Study #2: ifile.it
Next, I’d like to discuss ifile.it, an online file-sharing service that seems to be a one-person operation. Although the proprietor—I’ll assume he’s male and call him Mr. I for convenience—appears to work alone, he has know-how and moxie. In a few years, Mr. I’s been able to bootstrap his little start-up to an operation using at least two data centers in North America, with year-over-year growth that would make Facebook swoon.
Mr. I has done us the favor of blogging about his efforts, giving us an insider’s view into the business of facilitating online piracy. Mr. I gleefully takes shots at one of the file-sharing industry leaders, Rapidshare. Mr. I celebrates his operation’s successes as it hits milestones, posts YouTube videos to show people how a new download feature works, and jumps on the Twitter bandwagon. Mr. I even opens up a Google Project page, an online collaboration tool, with the apparent hope of getting others to develop applications that use his service.
Mr. I launches his blog on January 2, 2008, before his new file-sharing website, ifile.it, is in beta. He’s still running his prior website, which apparently was also dedicated to online file sharing. A series of March entries in the blog describe many of the details of the file-sharing service, including that it’s available in about a dozen languages. The site uses “a new distributed filesystem . . . specifically aimed at large file hosting.” Mr. I describes ifile.it’s support for two types of URLs for download links: “You can share either types of URL’s with your friends:)”
On April 1, Mr. I thanks his users for helping add languages supported by ifile.it to the list. He reports, “Looking thru’ the logs there are some languages such as Japanese, Dutch and Russian which are not on the list but are a sizable percentage of our users.” He asks for help in adding additional languages to the list.
On May 13, 2008, ifile.it hits a milestone, with more than 100,000 members “who registered and activated and use their accounts regularly.” On July 18, it clears a new milestone, 250,000 users.
In August, ifile.it increases its upload limit to 250 MB, but then finds that bandwidth is inadequate during peak hours, so ifile.it doubles its bandwidth at its Chicago network center a few days later.
On February 8, 2009, Mr. I asks users to limit heavy downloading to off-peak hours if possible. “[ifile.it] does not block users from downloading at any time but you might find the downloads being slow during peak hours, this is a result of hundreds of thousands of users a day who are not being blocked (unlike other filehosting sites).”
In the summer of 2009, Mr. I announces a large number of upgrades to the site and a redesign. He posts a YouTube video to describe a new upload system. In August, he reports that a major site overhaul is complete. His file sharing service can now upload 50 files at a time—“(quite a crazy amount).” He also opens a Google Project so ifile.it users can share their code for various tools to use the service. Mr. I keeps innovating. On October 19, “thanks to Yahoo Browser+ Plugin” ifile.it offers an advanced uploader “drag and drop” option. November 29, 2009, is a red letter day. Mr. I’s hard work pays off as he hits a major milestone: “One million registered and verified users.” His site is less than two years old.
Through all of this growth, despite the hardware and bandwidth expenses that Mr. I incurs, ifile.it doesn’t charge for its services. How does it make money? Through ads at its website. One million users apparently pays for 45 servers and all that bandwidth. Mr. I explains in his blog on July 20, 2008, apparently in response to users’ complaints about being forced to view ads before downloading files. “[B]ut unfortunately the server bills don’t pay themselves, this free service exists thanks to our advertisers (who beside our users they are one of the main stakeholders).” (Emphasis added.)
Mr. I’s company, for all of its servers and breathtaking growth, is tiny by piracy industry standards. In a chart prepared by Compete.com, we see that the number of unique visitors at ifile.it, measured at 110,184 last month and growing 117 percent in the last year, barely shows up when compared to the big operators, such as Rapidshare.com and Hotfile, each of which is reported to have had nearly three million unique visitors in January.
We need, urgently, to take the profit out of facilitating piracy.
Conclusion
The Internet presents challenges to our markets for creative works that we have never previously encountered. Infringement that would potentially undermine our domestic markets for creative works has historically taken place within our borders (or could be stopped at our borders), and those who profited from those activities could generally be held personally accountable. That’s no longer the case. Facilitators of piracy now operate in every corner of the globe, and their activities directly undermine our markets for books, music, and movies.
Online trafficking in stolen creative work revolves around one core activity: secret, anonymous online file sharing. Facilitators of online piracy host or provide support for that core activity, and they do it while disclaiming responsibility by taking shelter in the safe harbor protections of our Digital Millennium Copyright Act. A key part of the solution to the piracy problem is to hold those who profit from online file-sharing activities legally responsible for those activities.
Facilitating online piracy has become far too widespread, because it’s far too profitable and easy. To protect and reestablish our markets for creative work, we need bold, immediate reform of our copyright law.
* “Technical Report: An Estimate of Infringing Use of the Internet,” by Envisional, Ltd. (Cambridge, U.K.) for NBCUniversal. January 2011.
