It’s a ubiquitous complaint these days: One of your titles is being offered as a free download by a Website. Your author saw the offer during one of the Internet searches she does from time to time to see how her work is being received and reviewed. She wants to know what you are going to do about this blatant infringement of her copyrights. “You are going to do something?” she asks, with a tone that implies it’s not so much a question as an expectation. You’re the publisher, after all. And although she nominally holds the copyrights in her work, she has assigned to you the exclusive right to exploit them throughout the world, and so you have become the de facto caretaker of the copyrighted work you alone are authorized to manage and commercialize. The problem is that, as best you can tell, this particular Website business is based in the Ukraine and therefore out of the reach of U.S. law. Sure, you can enforce your U.S. copyrights internationally by virtue of U.S. participation in a collection of international copyright treaties, but you’d still need to hire Ukraine lawyers to pursue the accused infringer in Ukraine courts. Good luck with that. As of 2013, the Ukraine is on the Priority Watch List maintained by the U.S. Trade Representative, partly because of the country’s persistent failure to implement an effective system for combating online piracy (see “For Safer Sales Overseas” in this issue). If suing the pirate here in the United States is not an option (because it has no presence or property in this country, you cannot get jurisdiction), and suing the pirate in the Ukraine is not an option (because of expense, burden, and the slender potential for any success), what can you do?
See What’s Really Going On
Some pirate sites may not be actually stealing what it looks as if they are stealing. Many of them are engaged in credit card fraud and do not have copies of books. Instead, they merely capture search requests and then represent that they have the books that people want, available for free download. But there is a catch. Getting the free download requires opening an account or taking a subscription, and doing either of those things requires providing a credit card number so that the company can “verify your identity.” It is a scam to get credit card numbers. To test whether a site that seems to be pirating is really collecting credit card numbers, search it for a nonsense title (e.g., “Qwert-key Made Simple”) and see if the company claims to have a copy.
Send a Takedown Demand Within the United States
If a site does appear to be distributing copies of your title(s), check to see if the company is located in the United States or is hosting the site through a server located in the United States. If it is, you can send a takedown demand, which is a creature of U.S. copyright law and, like litigation, binding on only companies or hosts located in this country. Look for geographic contact information on the site or run its URL through a “Whois” search engine (betterwhois.com is a good one, but it may direct you to another register to complete your search). If you find the domain name registration, it may give you a physical address for the registrant or the site administrative contact. If these addresses are not in the United States, then look for the URL of the domain server (behind “Nameserver” at the bottom of the Whois listing; see the example below). You can then use this URL to search for the company hosting the server. You might see, as in the example, that there is a third-party host with a URL of ultradns.net, which turns out to be Neustar, Inc., a NYSE-listed company located in Virginia. Find the Website owner, registrant, administrative contact, or server host in the United States, and you can serve them with what is called a “takedown demand” under the provisions of the Digital Millennium Copyright Act (DMCA). A third-party host will normally respond to a properly written and directed takedown demand by promptly taking down the offending page or link.
Hit Overseas Pirates Where It Hurts
In mid-July, a new tool became available for publishers to use with pirates that are offshore and out of reach of U.S. copyright law and jurisdiction. One important source of revenue for these pirate sites—which often give away content they don’t own in order to build traffic—is ad sales. The White House understands this and has worked with the Interactive Advertising Bureau (IAB) and with a number of prominent industry players (Google, Yahoo, Microsoft, and others) to establish a set of best-practice guidelines for ad networks. These guidelines (available at 2013ippractices.com) suggest that ad networks:
- prohibit pirates from participating in their ad programs
- maintain and post best practices on their sites
- maintain independent vetting and auditing processes
- accept and process valid complaints from rights holders
- cease sending ads to pirate sites or take those sites out of their ad networks
Step 4 above is where you come in. By sending the participating ad networks a properly drafted notice, you can initiate the process of getting the pirate’s ad service, and therefore at least a portion of its revenue, cut off. Finally, you have a way to hit pirates right in the pocketbook. The best practices statement has a list of minimum requirements for an effective notice. They include:
- a description of the illegitimate activity and the URL where it is occurring
- evidence of the illegitimate activity (a time- and date-stamped screenshot) and evidence that the ad network you are sending the notice to is serving ads to the pirate
- a copy of your cease and desist letter or takedown demand sent to the pirate
- a statement under oath confirming what you have said in the notice
- your contact information
- your physical or electronic signature
Now, at long last, you have a low-cost, low-burden method for striking back at offshore pirates. Maybe next we can get the credit card and online payment processors to adopt a similar set of best practices.
Steve Gillen is a lawyer and partner in the intellectual property firm of Wood Herron & Evans and has focused his practice on publishing and media matters for 30 years. A member of IBPA, he contributes often to the Independent.
For Safer Sales Overseas
If you are considering selling books into, granting licenses into, or associating with distributors in countries you are not already familiar with, you should know about the “Special 301” report prepared annually by the White House Office of the U.S. Trade Representative. The report examines the state of intellectual property rights (IPR) protection and enforcement in countries around the world, identifying systemic problems, improvements, deterioration, and other changes country by country. Countries are ranked in three categories:
Priority Foreign Country. This designation identifies countries that have the most egregious IPR-related acts, policies, and practices with the greatest adverse impact on relevant U.S. products; countries that are not entering into good-faith negotiations or making significant progress in negotiations to provide adequate and effective IPR protection. The Ukraine is currently the only country in this category.
Priority Watch List. Placement on this list indicates the existence of IPR problems that concern the U.S. Trade Representative. Countries currently on it include: Algeria, Argentina, Chile, China, India, Indonesia, Pakistan, Russia, Thailand, and Venezuela.
Watch List. Countries on the Watch List have IPR problems of less concern to the USTR. They include: Barbados, Belarus, Bolivia, Bulgaria, Canada, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Finland, Greece, Guatemala, Israel, Italy, Jamaica, Kuwait, Lebanon, Mexico, Paraguay, Peru, Philippines, Romania, Tajikistan, Trinidad and Tobago, Turkmenistan, Uzbekistan, and Vietnam.
What, you ask, put our neighbor to the north, Canada, on the United States’ watch list? Well, it seems that Canada had not, until last year, taken steps adequate in the eyes of the USTR to address the global problem of Internet piracy. Legislative changes introduced in Canada in 2012 prompted an upgrade this year from Priority Watch to just Watch, but the USTR still has Canada on its list, primarily because of the way Canada handles IPR for pharmaceuticals.
More Help If You See Piracy as a Problem
“DRM Decisions: Analyzing the Business Case,” by Kirk Biglione & Russell Phillips
“Dealing with Piracy Problems,” by Tad Crawford, Joe Donnini, and Nancy Seifer
“Do You Know Who’s Using Your Content? Tactics for Finding Out,” by Linda Carlson