Publishing in the Age of Digital Piracy

Allworth Press, the company I founded more than 20 years ago, publishes many books for graphic designers and creative professionals in related fields. Recently I've received a number of emails from upset and worried authors who have found their books available for free on the internet. The titles pirated include Emotional Branding: The New Paradigm for Connecting Brands to People by Marc Gobé as well as other titles by luminaries in graphic design.

Trying to stop it

Pirating in the digital era has none of the swashbuckling glamour of olden times when the Jolly Roger made the innocent tremble with fear for their lives and their property. Today, nameless people who may be near or vastly remote are scanning books and making those unauthorized versions available through peer-to-peer file-sharing sites online. To stop this infringement, publishers have to send notices to the websites to take down the offending work. If a website won't take it down, the publisher can also send a take-down notice to the site's Internet Service Provider (ISP). If the ISP won't comply, expensive litigation may result.

However, the very expense of litigation makes it an unlikely route for many publishers. In addition, the publisher can waste substantial amounts of time finding out about offenses, tracking down the correct contact information for websites and ISPs, sending out take-down notices and monitoring compliance. It is nonproductive, soul-destroying, wasteful work, yet necessary as some unpleasant things in life are.

Who could blame the vengeful publisher or author for yearning for happier days long past, when a judge could say to a gaggle of pirates trembling before the court:

Ye and each of ye are adjudged and sentenced to be carried back to the place from whence you came, thence to the place of execution, and there within the flood marks to be hanged by the neck till you are dead, dead, dead, and the Lord, in His infinite wisdom, have mercy upon your souls…"
— from the sentencing of 52 pirates in April 1722

Who are these pirates?

So who are these miscreants cutting the spines off of books and scanning the pages for upload? What are their motives? Can we really ever be certain as to their identity?

Who would want to share graphic design books with peers? Could it be graphic designers? If it were designers, what might their motivation—or justification—be? Before passing sentence and sending them to the place of execution, shouldn't motivation be given at least passing consideration?

The copyright law refers to "innocent infringers." These are basically simple souls who relied on the absence of a copyright notice to infringe someone's copyright. Such naïve creatures can throw themselves on the mercies of the federal district court and plead for mitigation of damages. Perhaps there are some people who have no idea that copyright exists and simply copy without any sense of wrongdoing. We have even had the bizarre situation in which one of the pirates added his or her moniker to the cover of the book as if the act of scanning had somehow made this person into a co-author.

Next would come the infringers who know that it's wrong but see no likelihood of being punished and enjoy the power of being able to steal with impunity. Ethical concerns are pushed to the side. The power to take is the only justification needed. What can you do with people like this?

After that in this sequence of Dantean circles might come the infringers who believe that the copyright law is mistaken in giving to creators a monopoly over their creations for a limited period of time—the copyright term of the creator's life plus 70 years. Like Robin Hood opposing the injustices of the usurper King John, these people scan and make books available because all intellectual property should belong to the volk, the great collective. That's a nice idea, of course, that the ease of digital transfer makes far more possible. The problem here will be the impact on creativity if creators no longer receive income from what they create. In that case, some other system to support creative work would have to be developed, but I haven't a clue as to what it might be.

Availability and pricing

Another rationale might be that the book is not available as an e-book and therefore the infringer is meeting an unfilled need. Further, the infringer might argue that e-books don't compete with physical books (p-books), so no harm is really being done. Allworth Press is now publishing e-books simultaneously with p-books, but many books on our backlist are not yet available as e-books. Nonetheless, it is an infringement to make an e-book from a p-book. The argument that e-books are simply an add-on market is interesting. No one knows yet if this is true, but publishers are certainly hoping that it is the case. If it is the case, however, publishers will quickly make their books available as e-books (which Allworth Press is in the process of doing), so the rationale of the infringer doesn't hold.

Or the infringer might argue that the piracy is a protest against what the pirate considers to be the high cost of e-books. Amazon has priced e-books for the Kindle reader at $9.99. Publishers breathed a collective sigh of relief when the iPad negotiations raised the range of retail prices to about $15, although publishers would really prefer prices more in the $20-25 range for an e-book since many new p-books sell for $25.

The debate over e-book prices revolves around the perception that e-books add no cost to the production of p-books and therefore should be cheaper. Publishers don't see it quite that way, since the e-book is simply one of many add-on revenue sources that come from the investment in creating a book (including the design). While it doesn't really matter what the price level for e-books is now when they comprise only 2-3 percent of the marketplace, the growth of e-book sales has been rapid in the last year. If this trend continues and at some point in the next decade e-books sales are greater than p-books sales, we publishers fear the low e-books prices might threaten our survival. Viewing the experience of the music industry lends credence to these fears.

A mighty harvest

So, whatever the motives, if someone scans a book and makes it available for free, that person is acting unethically. Are the people who are scanning in graphic design books designers themselves? Could graphic designers be at all to blame, even partially? In the vast grayness of the web, there is at least one other possibility: The scans could be the work of "click farms" that harvest creative content of all types (music, movies, games, books) to make consumers click on their websites. These clicks are on pages that have advertising and each click generates revenue for the site. So maybe designers aren't implicated at all, but who can be certain?

It's surprising that software hasn't been developed to find infringements, send take-down notices and monitor compliance. One very large publisher is testing a system that takes a statistically unusual phrase on every 10th page of a book and then uses those phrases to search for pirated versions. It sends automatic take-down notices, but if the notice isn't complied with or the site is a repeat offender, then a corporate legal department must intervene. If smaller publishers and distributors of creative content eventually are able to pay for a similar security service (assuming that it's found to work), the question is whether it will be affordable.

The publishing world is still trying to decide whether e-books are a marvelous boon (add-on income) or a terrible threat (lowering prices and reducing p-books sales). Digital piracy is certainly another factor in the mix that helps makes life—and publishing—interesting before it's over.