The copyright page in Unraveled contains this statement:

Where such permission is sufficient, the author grants the end user the right to strip any DRM which may be applied to this work.

I added this because some of the places where the ebook is available for download automatically apply DRM. I am not left with a choice in the matter.

I don’t like DRM. If I had a choice, I would kick DRM to the curb, effective immediately, and I would never, ever see it again. It doesn’t work–a well-trained two-year-old child could strip DRM in about 12 seconds–and once stripped, it doesn’t ever need to be put back. All DRM has ever done for me is prevent me from enjoying the books that I have purchased legitimately.

But it is illegal to strip DRM. In particular, it is illegal under 17 U.S.C. s 1201(1)(A), which says: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

But Subsection (3) explains that “to ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (emphasis mine).

I’m fairly certain I am the owner of the copyright. But the statute doesn’t say, “without the permission of the copyright owner”–it says, “without the authority of the copyright owner.” I don’t pretend to know how this will be interpreted, and I can’t actually encourage anyone to do something that would be illegal in reliance on my say-so. So you should consult a lawyer before you do something illegal. (Or, you should do it in private, and not, like, tell people about it. But don’t tell anyone I said that.)

I suspect–and this is rumination, and not legal advice–that my permission is effective authorization to allow DRM stripping for my self-published works, and so to the extent that this may be necessary, if you’ve bought a DRM-crippled version of my self-published works, I extend to you whatever additional license might be necessary to uncripple it. (And I can do that, so there we are.)

I also suspect that I may not be able to authorize anyone to strip DRM from my works that are traditionally published. That’s because I’ve given Harlequin the exclusive right to distribute my works, and I suspect that I lack the authority to tell people what they can and can’t do.

I don’t know this for a fact, though. The case law on DRM-stripping says that the anticircumvention provisions of the DMCA are independent of copyright. Having carefully checked my contract with Harlequin, nowhere in it do I grant them exclusive rights–or any rights at all–with respect to authorization of anticircumvention. My contract only refers to “copyright rights.” So I may still have the authority to allow you to strip DRM.

There are other things to think about, that I won’t go into here. This is certainly a tangled legal issue. If you really want to be safe…typically, I’d say, “talk to a lawyer,” but I doubt any lawyer today knows the answer. It’s an open legal question.

I haven’t seen any case law centering on this point, as very few copyright owners have granted DRM-stripping permission–and so to the extent that it is within my power to grant, which it probably isn’t at all, I’m okay with anyone who wants to strip DRM from my traditionally published works as well in order to enjoy any of their fair use rights.

If anyone is aware of any case law that decides the meaning of “the authority of the copyright owner” in this subsection, I’d love to see it–but a brief skim suggests that this is an open issue.

Today, the disturbing news that is going around is that some publishers have asked Overdrive (the library lending program) to limit the number of checkouts for a digital lending license.

Look, I get that money is tight. I get that you’re worried about an infinite number of checkouts from one digital copy. I get that you’re projecting the future and it’s filled with fear. What I don’t get, however, is the utter disdain for the vital role that libraries fill in our community, and in the book-buying ecosystem.

So let’s talk about the lifecycle of a voracious reader: me.

I enjoyed reading from a very young age. I started forming lifelong habits at the age of ten, and continued through my twenties. It quickly became apparent that the sources of books available to me were vastly, vastly inadequate. My parents didn’t have a lot of discretionary income (having opted for discretionary children instead). We had a lot of books in the house, but a house that has 1,000 books in it is nothing–you finish most of those 1,000 books by the time you are 9 or 10, and that’s including the hours you spend struggling through “The Rise and Fall of the Third Reich,” because damn, there really isn’t anything else to read.

We got most of our additional reading through the library. We would go every week during the summer, and we’d each check out the maximum number of books. (Which I think was three or four). I would finish my own books on the first day of the week, and then swap with my sister. By the end of the week, we were all slavering, waiting for my little brother to finish his latest Hardy Boys book.

When I went away to college, I had to bend over backwards to keep my fiction reading up. I read everything I could find in the library. I borrowed from friends. On occasion, when I couldn’t bear to wait on the library waiting list for a new release, I would take the money for the book I wanted from my food budget–but since I was spending $15 a week on food, this was not always an option. Back then, I was willing to jump through the most enormous hoops to get books for free: begging, borrowing from people I barely knew, waiting for weeks on the library waiting list. I was more than willing to trade free time (which I had in spades) for books.

Since that time, my discretionary income has increased substantially, and my free time has decreased accordingly.

When I was young, and forming habits, and had no money, I could get free books. If I had not been able to get free books, I would have eventually found other ways to pass my time. Video games, role playing, television… you name it, there are a ton of other free or near-free habits I could, and would, have developed.

Today, library budgets are being slashed. Some publishers don’t make their books available for digital lending, and more publishers are actively hostile.

But let’s face the truth: libraries are an annoying way to get books. You have to wait. You have to read the book on someone else’s schedule–when you hit your spot–and you only have two weeks to read it before it’s ripped from your grasp, and later on, when you can’t remember the title or the author you can’t scour your shelves in vain.

A lend from a library is never as good as a purchase. People do it because they are readers, and they put up with it because it is really, really expensive to support a flat-out voracious reading habit on your own dime.

Publishers, if you make it impossible for young people–those in the “under 25″ category–to support a good reading habit on their own dime, these people are not going to start magically spending money on books when they start making a decent income. No; at that point, they’ll already have started spending their time haunting hulu instead, where they can actually get free entertainment. And when they start making money, they’ll be buying iTunes streams of those shows they watched for free.

Me, personally, I’d rather they were buying books.

When I was 20, I spent maybe $50 a year on books. Libraries subsidized my reading for 10 years of my life. But once I started having a reasonable income, the tables turned. I imagine that I’ll be spending over $5,000 a year on books–what I spent last year–every year for the rest of my life.

Libraries are the future of reading. When the economy is down, we need to make it easier for people to buy and read books for free, not harder. It is stupid to sacrifice tomorrow’s book buyers for today’s dollars, especially when it’s obvious that the source in question doesn’t have any more dollars to give you.

Mike Shatzkin has an interesting post in which he makes the claim that (1) readers never own an e-book; they just own a license, and therefore (2) readers should stop complaining about DRM and the lack of the right of first sale, things that are “silly conversations” in the digital world.

The second point first: Shatzkin’s post is an exercise in circular logic, because the legal intricacies of license versus ownership are totally irrelevant to the questions he purportedly dismisses.

It is not enough to say “an e-book is only licensed.” Licenses have content that restrict use. There is no magical default license language in the sky–publishers and distributors set the terms of the license. If the publisher says, “you may not lend your e-books,” the license that the reader gets does not allow lending. If the publisher says, “you may lend your e-books,” lo and behold, lending is allowed.

It begs the question (note the correct use of the phrase, please) to say that readers should not complain about DRM because they have a license. Why the heck can’t readers complain about a license, when the terms of that license are dictated by the publisher? Even assuming that Shatzkin is right about the license/ownership debate, why is it a “silly conversation” to talk about the terms of the license? It’s not silly to complain when you are paying more for books where you receive fewer rights.

Saying “because it’s a license” doesn’t answer any of those questions. It just tells you why you have the questions in the first place. The question of license versus sale is irrelevant to the question of the content of the license. It is never a silly question for consumers to say to producers, “We would like a different license, please.”

There should be a name for the logical fallacy of equating “legal” with “unarguable,” but in an event, that’s what Shatzkin is doing.

Now we come to the second count: Shatzkin basically asserts that you don’t own your e-book; you merely have a license to use it. This is a categorical claim that does not track the (still unsettled) law on the question. As a note, I think Shatzkin is confusing ownership of the copyright with ownership of a copy.

To make the distinction clear: I own a copy of this paper book that I am holding in my hand. (It happens to be Tiffany Clare’s The Seduction of his Wife, in case you’re wondering.) I bought it at the store. Buying that copy gave me certain rights: the right to read it, to read it aloud, to give it away on my blog, to lend it to a friend, to resell it to someone else. I have the right to make an archival copy for personal use. I own a copy.

I do not own the copyright, nor do I have a license to distribute. That means that I cannot make photocopies of the book and distribute or sell them.

Now, let me start this off by saying that I have never seen anything that suggests that you cannot sell a digital copy. If anyone can point me to that, I’d love to see it. It’s true, however, that most sellers would prefer to license digital copies. This is because the seller retains more control that way. But no person can categorically state that all e-books are merely licensed and not sold. If you want to know if you have a license or a sale, you have to look at how the item in question is transferred. In Vernor v. Autodesk, the Ninth Circuit explained:

A software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.

(For reference purposes, the Ninth Circuit falls on the “more likely to read as a license” bit of the license/ownership debate; this debate is not over by any means.)

Under this standard, I suspect at least some of the e-books I have purchased are in fact sales and not licenses. It’s also quite clear to me that nobody can say, “you didn’t buy your e-books!” without looking at the terms of the transfer. And someone who says, “Gosh, we’re all calling them sales, and that’s wrong!” needs to look at factor (1) in the standard above and ask, “If we are calling them sales, can they actually be licenses?”

Of course, my analysis doesn’t mean that we must perish under Shatzkin’s parade of horribles, in which one person buys one copy and then transfers it to infinity and beyond. The transfer of the digital copy requires you to effectively make a copy–something you can’t do with a print copy–and it’s an open question whether that is allowed for owners of a copy. You’d probably have to have a license to do that.

You may have heard that ICE (that’s Immigration and Customs Enforcement) has seized several domains that it believes are related to piracy. I’m not sure why ICE is doing the seizure, as compared to, say, the DOJ or DHS. I have conspiracy theories I can spin about border exceptions, but they’re kinda paranoid, and I want to reserve my paranoia for twitter, where I’m stuck with 140 characters.

(Okay, fine. I’ll be paranoid on my blog: one possibility why ICE is involved is that the people who ran these domain names are outside the US. The theory would be that we can then seize their stuff without due process–yay border/noncitizen exceptions! This is so paranoid on my part that I’m almost ashamed to write it. I don’t want to believe my government just claimed that it had a right to censor any internet site outside the United States, and that noncitizens don’t have a right to bitch about it. I so want my paranoia on this to be just paranoia, because otherwise we are so far into 1984 territory that I want to vomit.)

In any event, needless to say, I hate this. I don’t understand how this is not the very definition of a prior restraint–that is, blocking someone from speaking and then subsequently requiring them to prove that their speech is okay. Free speech 101: This is prima facie intolerable. This wasn’t even thinkable in 1792. How are we thinking it today?

This isn’t how we swing here in the United States. We believe in being innocent before being proven guilty. If these guys are copyright infringers, by all means prosecute them in federal court and seize the domain names upon conviction. But I just cannot possibly fathom a world in which someone thinks it is okay for the federal government to shut down a website and literally block free speech without first obtaining a conviction or providing an opportunity for defense.

Gosh. It just seems so much less totalitarian to fight piracy with books that are easy to access and download worldwide, and which are reasonably priced. Or, failing that, to fight piracy like every other crime: with the rule of law.

Someone sent me a link to a site that uncovers pirates by identifying information about pirates that they have posted on forums: IP addresses, home addresses, what they do for a living, and so forth.

I understand that piracy is a problem, but this site is not a solution.

First, this site has no safeguards in place to determine the truth of any charges. IP addresses can be masked or changed. Identifying information can be made up–or borrowed from someone else. Someone could be identified by name on that site when they haven’t done anything wrong, except to have a high school friend who thinks they are a nerd, who appropriated their name–and this could prevent that innocent person from getting a job, or from getting into college.

People pirate my books–but I don’t approve of defamation as a way to stop it.

Second, the behavior on the site borders on cyberstalking, and in some instances, crosses over the line. This is illegal in many states. The defense the author of the site provides is that first, the person she is cyberstalking has violated the law. This is not a defense. If someone assaults you in real life, you don’t get to cyberstalk them in return–you have to go to the police and file a report. If someone steals your computer in real life, you don’t get to shoot their dog. You go to the police and file a report.

Criminals have rights, too. They don’t lose the protection of the law simply because they have engaged in one criminal act. This is triply true when the person has never been convicted of a crime.

Second, she points out that the information is public–that is, she got it off public websites. This may be true, but you can stalk someone simply by standing on public sidewalks, too. The question is not “did you steal into their house and get something private” but “is this a form of harassment?”

This is vigilantism, plain and simple. And that’s illegal.

Third, the person running the site claims that she is not an author. If this claim is true, and to be frank, I doubt it, that means that she’s taking self-help measures in a case when it’s not even herself she’s helping.

I’m sorry, but copyright law gives a remedy to infringement to me, to the attorney general, and to those people who I have authorized to act on my behalf. My publisher and I have the authority to decide how we are going to deal with piracy of my work. That remedy, exclusive to me, is as much a part of the copyright statute as the right of distribution.

I haven’t authorized her–and I would never do so, particularly since her “method” of outing pirates is to include links to works they have pirated, even when the original link has expired, which seems to me to be a particularly odd way to contribute to the demise of piracy. For her to arrogate to herself the right to act in these cases without permission from the author is itself a form of theft.

I don’t particularly approve of piracy (although you’ll notice that I flinch less than many at the prospect). But I do believe in the rule of law. I believe in using the remedies given to you, and not enlarging upon them. And I believe that people who do things that are wrong are entitled to the protections that government affords us all.

This site is not a proper way to counteract copyright infringement.

(exclamation points, on the other hand…)

There’s a conversation I’ve had before. In terms of authors I fall on the weak end of the “Boo, Piracy!” side, and I especially fall on the extremely strong end of “Boo, DRM!” The basic gist of the conversation was something like this: “Well, you might not think it’s a big deal now, but wait until you see your book on the piracy sites, with all those downloads listed.” Well. Okay. I’ve waited. Now here I am. I am officially a published author. I officially have to worry about whether my sales numbers will be good enough, and whether they’ll justify another contract. I have, in fact, lost sleep over this.

You know what makes my head hurt when I worry about sales numbers and contract renewals? The fact that one of my local Borders didn’t get their shipment of my books in for two weeks, and worrying that this might be more than just a local error. You know what will make people buy my books, faster and with greater likelihood, than if I spent 20 hours a week filing takedown notices? Their finding my book in Target where they stopped by to get lightbulbs.

My guess is that maybe, maybe, 1% of the people who download my book will actually read it, and maybe, maybe, 1% of the ones who actually read it would have purchased it. I absolutely despise these “estimates” of the cost of piracy that just take the number of downloads and multiply it by the cost of the book, because that has no basis in reality.

The most recent such estimate has hit the twitter/authorosphere by means of Publisher’s Weekly, in which Attributor estimates that piracy costs the industry “as much as” $3 billion in lost sales. Already, this has been turned into “pirates cost the industry $3 billion!” Sugar plums dance in heads, as people imagine what their sales would be like with another 6 zeroes attached to the end.

But the study (you can read the whole thing here) isn’t worth the paper it isn’t printed on, and its findings have been lied about by the very people who ran the study. It is so egregious, that I am angry just thinking about it.

So let’s start with first things first: Note the source. Attributor is not a scientific outfit. They are not economists who have been trained to determine this sort of thing. What “Attributor” is, is a fee-charging service that tries to stamp out piracy for you. This means that Attributor has an incentive–a financial one–to convince authors and publishers that there is money to be made in stamping out piracy. Beware anyone with murky motivations.

Now let’s move on to the methodology.

Attributor estimated the cost of piracy at $3 billion dollars using the following methodology:

1. It used the titles that it was tracking–that is, the titles where people had paid it money to hunt down and remove illegal copies. These titles are not listed in its methodology, but Publisher’s Weekly listed them as titles like, “Girl with the Dragon Tattoo” and “Angels and Demons.” Not precisely representative of book downloads in general.
2. Somehow, it figured out what “market share” each potential hosting site represented. The methodology does not explain how it figured that.
3. Four of those sites show how many “downloads” a title has. Using the estimated market share in part 2, Attributor stated that these sites represented 36.4% of all downloads. So it figured out the number of downloads by taking the number of downloads from those four sites, and dividing that number by 0.364. This gave them 9 million copies of books sold.
4. Attributor looked up prices for these books, and multiplied price by downloads. This gave them a figure of $380 million.
5. It then estimated that the 913 titles it was tracking represented 13.5% of the book publishing market. Again, no explanation is given as to how they measured this. By number of titles? (not possible; there are more than 10,000 books available for purchase). By percentage of books sold, per BookScan? I don’t really know where they get this number, but it’s pretty clear that the titles listed by Publisher’s Weekly represent very, very popular titles, and I’m not sure it’s fair to extrapolate from one set of books to the other, especially since their own findings demonstrated that there was variability in download rate for different types of books. In any event, they took $380 million and divided it by 0.135, which gave them $2.8 billion.
6. They added $200,000,000 to the number to make it nice and round. No, I’m not joking. That gives you an idea about precisely how scientifically accurate this study is.

These numbers are useless. In the study’s methodology, it acknowledges that these numbers cannot even attempt to estimate financial loss:

(study here; page 5).

Which, of course, is why, Attributor, in announcing its findings, announced it thusly:

You know what I call that?

I call that dishonesty. The numbers themselves are drawn from nowhere, are unexplained, and use estimates that the survey methodology itself acknowledges render it useless for the determination of loss. But Attributor–who makes its money from publishers scared of piracy–has itself used those numbers to claim something that they can’t actually claim, and those numbers are now being disseminated around the web by people who call this fact.

Piracy is bad. But you know what? So is a dishonest representation of those findings, especially when those findings then become part of the debate about what should be done about piracy.

I am firmly opposed to piracy. But I am also firmly opposed to lies about piracy, and this is a lie, both in the “damned statistics” meaning of the word, and in the “knowing misstatement of the truth” sense of the word.

Shame on you, Attributor, for your misleading press release, and for your blog post stating in certain terms what you, yourself, internally said you hadn’t even attempted to estimate.

The first thing I saw this morning on Twitter was a link to an article about e-book sales in the New York Times.

This link, oft-retweeted, was usually mentioned alongside an admonishment to a Kindle owner named Ms. Englin.  Ms. Englin’s offense?

Exploiting a loophole in Amazon’s system, Ms. Englin has linked her Kindle to the Amazon account of some nearby friends, allowing all of them to read books like “The Lost Symbol” at the same time — while paying for them only once. “I read much more, I tend to read faster for some reason, and I read a greater variety of things,” said Ms. Englin, adding that this is nearly the same as lending a physical book to friends. “We haven’t really looked closely at Amazon’s terms of service. But I do suspect we are breaking the rules.”

This is not called stealing.  It is not even in violation of Amazon’s terms of service.  Let’s go take a look at a book that I love–Eloisa James’s A Duke of Her Own–on Kindle.  (For some reason, Amazon seems to believe that this book was written by Lorraine Heath.  Not the case, Amazon.)  Scroll down to the product details, where you’ll see this lovely line:

Simultaneous Device Usage: Up to 5 simultaneous devices, per publisher limits.

See that?  What that means is that you can download this book five times.  So if you had a Kindle 1, and downloaded it there; and then you got a Kindle 2, and downloaded the book there, and then got a Kindle DX, and downloaded it again, and then used the Kindle for iPhone app, and downloaded it again, and then replaced your iPhone with the iPhone 3GS–you, as a consumer, would not be able to re-download the content for a sixth time, simply by virtue of your being an early, regular adopter of content.  If you wanted it again, you would have to purchase a second copy.

It also means, though, that if I purchased two Kindles–one for me, and one for my husband–we could read the same books while only paying for them once.  Check your horror quotient there: How do you feel about that?  Feel like we’ve done anything wrong?  I hope not, because it would be silly to say that me and my husband couldn’t share digital books.

In order to link a Kindle to an account, you need to share an Amazon account.  That doesn’t just give someone the right to download the books you’ve purchased; it gives them the right to buy books on your credit card.  Linking someone to your Amazon account is in no way like putting a file on a file-sharing site.  It gives them the right to purchase Selected Nuclear Materials and Engineering Systems (Part 4) for $6270.42, and stick you with the bill. In other words, linking accounts is an act of trust, limited by good sense (and the digital rights restrictions the publishers place on their products) to good friends and close family.

This is not stealing. It is not cheating.  It is not piracy.  It is the time-honored, all-important act of sharing books with a few trusted friends.

As authors, I think it is easy to jump on top of people for not paying for a book.  But keep in mind that the value a book has is not just in the act of reading it.  It’s also–hugely so–in the act of sharing it.  In giving a book to a friend and waiting breathlessly to see if she loves it as much as you do.  In reading a book someone else has recommended, and figuring out why it does (or doesn’t) work for you.  Books are about building community, and if we undercut that community as authors, we take value away from our books.

In a world where the price of books appears to be in free-fall, that’s not an outcome that anyone desires.  So authors, please, before calling your readers thieves, think carefully: is it really theft, or is it just part of the natural and inherent value of a book?  And if you insist that that value be taken away, what price do you think your books will support?

(I edited this post in tiny part to clear up an antecedent.)

So far, the main argument I’ve heard in favor of the position that text-to-speech rights infringes on audio recordings and performances is that if you had a really good text-to-speech engine, people would no longer buy audio rights.  Personally, I find that very sad–people who read books aloud are artists of immense caliber, capable of communicating nuance with very small variations in tone.  I’d hate to think we value them so little that they could be so easily replaced.  But even assuming that’s true, the fact that text-to-speech might cut into audio sales is not an argument that convinces me copyright infringement has taken place.

For those of you who care to follow me–which, based on my past copyright posts, is nobody–a brief explanation of why I think that is below the jump.  WARNING:  This post makes use of my execrable artistic skillz.

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