The Authors Guild is participating in two lawsuits of vital interest to authors. Both lawsuits, in different ways, fight back against a philosophy that arose alongside the internet, the idea that “information wants to be free.”
On its surface, this philosophy sounds appealing. If information is free and available to everyone, the argument goes, it will provide a huge benefit to society. The elitist gatekeepers who profit from selling information are pushed aside, and everyone — especially the disadvantaged and those from underserved and marginalized communities — will have free access to the same information as the wealthy and privileged.
But in reality, this idea simply offers a new route for the monetization of information, by taking income from authors and diverting it to internet companies in the form of advertising dollars derived from providing free information to users. “Free” content attracts users to the platforms, driving up the value of their advertising space. Piracy is the natural outcome of this philosophy. It is a major reason why authors have seen a collapse in their average income over the past 10 years, along with many other creators, such as musicians, songwriters, composers, photographers, playwrights, graphic designers, and small businesses and nonprofits that own copyrights. Since big tech companies fiercely protect their intellectual property, the “information wants to be free” philosophy in their hands is actually “information wants to be free (except mine).”
The first lawsuit, in which I am a plaintiff, along with the Authors Guild, Amazon, and Penguin Random House, is against one of the world’s largest and most notorious piracy networks, Kiss Library, apparently based in Ukraine. For years, my books, and those of thousands of other American authors, have been stolen, stripped of DRM (digital rights management), and sold on a network of piracy websites. We filed the lawsuit on July 7 in Washington State, asking that Kiss Library and its operators be enjoined from copying and illegally selling our books. On July 18, the judge ordered the domain registrars to disable the domains controlled by Kiss Library and turn over all the documents related to the sites within five days. The court also ordered all the payment processors to freeze Kiss Library’s financial assets. The defendants failed to attend the hearing or file anything in response to the lawsuit, and so on August 28, the judge extended the preliminary injunction and continued the freeze on assets during the pendency of the lawsuit.
The lawsuit exposed the breathtaking reach of the Kiss Library piracy operation, which extended well beyond books to cover a dizzying array of media, from music and movies to cartoons, anime, graphic novels, and much more. Dozens of websites with many millions of customers were shut down without notice. Those customers, most of whom thought they were dealing with legitimate websites, were left confused and shocked. If we win the lawsuit, even by default, the author-plaintiffs might receive damages from the frozen assets. (I will donate my share of any award to the Authors Guild Response Fund to support authors during the pandemic.)
Most importantly, the lawsuit so far has been remarkably effective. It stopped dead the theft of millions of dollars of creative work, and it put other piracy websites on notice. Our great concern is that if piracy is allowed to flourish unchecked, as it has been, the publishing industry may suffer the same fate as the music industry, in which rampant piracy led to severe deflation in the compensation musicians received for their work. Since authors derive a major portion of their income from e-books, the destruction of that market would be a devastating turn for American literary culture. The Authors Guild is determined to prevent that from happening.
The main enabler and supporter of piracy is Google. The Kiss network of piracy websites that are run out of a server in Ukraine would have no chance of reaching a U.S. audience if it weren’t for Google. You might say that while Google is not actually stealing books, it’s driving the getaway car. Until Kiss and its dozens of piracy sites were taken down, you could easily find the sites by typing kissly, kiss library, or related terms into the Google search box. Google never delists piracy sites, even the most notorious. And it won’t demote a piracy site in its search engine until it has received many thousands or tens of thousands of legal takedown notices.
The second lawsuit, launched by the American Association of Publishers (AAP) on behalf of publishers and authors, which the Authors Guild helped initiate and supports, is against an outfit called Open Library. The Open Library project, part of Internet Archive, is masterminded by the wealthy tech entrepreneur Brewster Kahle, who also runs a family foundation with over $100 million in assets. Internet Archive declares: “Our mission is to provide Universal Access to All Knowledge.” As part of this, Open Library proudly notes on its website, “We began a program to digitize books in 2005 and today we scan 1,000 books per day in 28 locations around the world.” For over a decade, Open Library has been loaning out digital copies of these scanned books to any takers, without the permission of authors or publishers and without paying a dime.
The Authors Guild absolutely supports the idea of information being universally accessible. I might just point out that we have a wonderful system for that in place already: the hundred thousand public libraries in the United States that loan e-books and physical books for free. Even during the pandemic, libraries that were closed continued to loan e-books. Legitimate libraries have to pay licensing fees for e-books, some of which go to support the author.
For years, the Authors Guild tried, without success, to initiate a dialogue with Brewster Kahle to create a collective licensing solution that would compensate authors for this use of their work. Earlier this year, we again wrote Mr. Kahle, pleading with him to sit down and talk to us. He refused. Several publishers, organized by the AAP, then filed a lawsuit, supported by the Authors Guild, to stop Open Library from copying copyrighted books without permission or payment. The importance of the lawsuit to authors cannot be overstated. If the publishers win, as they should, the victory will help establish the crucial principle in the digital world that “copyright” means exactly what it says, the “right to copy.”
The lawsuit, as you might imagine, caused a hullabaloo among the “information wants to be free” lobby. On many tech websites and blogs, we authors were told that we’re selfish, we’re Luddites, we’re elitists. These critics are not just random trolls. One, for example, is a law professor at NYU named Christopher Sprigman, who occupies a position of influence and power; he was appointed by the American Law Institute to supervise a restatement of copyright law. While this is supposed to be a neutral effort to review and summarize current law, Sprigman is anything but neutral. On Twitter, he ranted against our Open Library lawsuit as “brain-dead and tiresome” and “baloney on stilts,” and he called authors “mean-spirited.” It’s worth pointing out to Mr. Sprigman and others that at Internet Archive, software engineers and executives are paid hundreds of thousands of dollars a year, and Internet Archive makes millions from contracts with libraries for scanning their collections. Mr. Kahle himself is a fabulously wealthy tech entrepreneur. The average author today makes just $20,300 a year from writing. (I would guess Mr. Sprigman makes a little bit more than that.) In the affluent tech world that Mr. Kahle and Mr. Sprigman inhabit, it seems only authors are being asked to give up their work for free.
It seems so obvious I’m embarrassed to repeat it: authors cannot write books unless they earn a living. We no longer live in a world of patronage. Authors and other creators have to put food on the table, pay the mortgage and send their kids to college. Who is hurt most by the piracy of Kiss Library and Open Library? Certainly not best-selling authors like me. The people most affected by piracy are struggling authors, authors of color, writers from marginalized and disenfranchised communities, authors with controversial ideas, and young writers trying to establish themselves and find an audience. They are hurt not just directly, by having their work stolen, but also by secondary effects: publishers under financial pressure are retrenching, pulling back, and taking fewer risks with authors. If only best-selling and celebrity authors can get published, which is where we’re headed, that would be devastating to the free flow of information in our democracy. The “information wants to be free” philosophy is nothing more than a form of economic censorship, plain and simple.
— Douglas Preston
The Authors Guild