Tuesday, October 27, 2015

DMCA Self-help for Self-published Authors (and others!)


I am currently being trolled on Twitter by a guy who is outraged--outraged, I tell you!--that I had the gall, nay, the hatred for humanity, to send DMCA takedown notices to content aggregator websites asking them to remove pages offering unauthorized free downloads (i.e., pirated copies) of my book. His argument meandered from "DMCA takedown notices are ineffective and you want your books pirated anyway" to "you're an idiot" to "DMCA is the source of all evil in the universe and you--YOU evil author!--are responsible for 'destroying society' with your abusive DMCA takedown notices." The fact that, without some amount of compensation authors would no longer be able to write books for him to steal, did not register with him at all.

In some cases, the websites politely replied and apologized. In others, there was no reply, but the page eventually came down. I go through this exercise every few months and happened to tweet about it. Enter troll.

There are actually many directions to go with this topic. The troll, true to form, chose juvenile mocking and ignorance (meanwhile raising my profile on Twitter and gaining me new followers--thanks! :-) ) More interesting directions would be:

--An exploration of data showing whether ebook theft helps or hurts new self-published authors (there is too little data to come to any solid conclusions, esp wrt new authors).

--A discussion on ways to improve the DMCA (the DMCA covers a lot of ground besides takedown, but that would take more inches of blog post than I'm interested in going into, and many intelligent and informed professionals in the field (read: not trolls) are already discussing this very topic on the interwebs--personally I think fine-tuning and expanding the fair use exclusions from copyright ownership are the way to go, but that's just me).

--a post to my fellow indie authors explaining how the DMCA takedown notice works and how they can self-help from piracy--if they so choose--by using this important tool in protecting their (painfully meager) livelihood.

Naturally, I'm going with the third option. First, I'll discuss how the DMCA safe harbor procedures and takedown notice came into effect, then I'll walk you through doing your own DMCA takedown notices (with a little help from Science Fiction and Fantasy Writers of America). In a subsequent post I'll have a brief discussion on the places and ways that you want to give away your book for free.

First up, a big fat disclaimer:

This blog is not legal advice, and you should not treat it as legal advice. I don't know you or your particular circumstances, my license is retired, and if you want to know about your particular legal rights and risks under the DMCA, you should talk with a lawyer.

What is the Digital Millenium Copyright Act?
The DMCA was written to solve a problem for website owners who wanted to be able to let third parties post content for others to enjoy. If a person posted something to the website, and another someone came along and contacted the website owner in writing to say that the content was infringing their copyrights and should be removed, the website owners were finding themselves caught in the middle and frequently sued by both the alleged infringer and the alleged copyright owner. The courts held early on that when a third party posted infringing content to a website, the website owner itself became an infringer by continuing to "publish" (one of the exclusive rights of copyright ownership) the infringing content on the internet. So website owners were left with either leaving the content up and risking being held liable for infringing, or taking it down and risking being held liable for tortious interference with contract, breach of contract, or whatever the person/business whose content was wrongly removed could come up with. Something had to be done, or the websites we all know and love where we can post and share content wouldn't be able to afford to stay in business.

Among other things, the DMCA addressed this problem by creating a "safe harbor" for website owners. Now if a copyright owner finds infringing posts of their content out on the internet, they send the website a "takedown notice" where they swear under penalty of perjury that they own the rights to the content, that the content has been posted without their permission, give their personal address and phone number for contact (yeah, that part creeps me out a little as an indie), and ask the website owner to take down the content. The website owner then must remove the content and also give notice to the party that posted the content of what has happened.

That party then may send a "counter-notice" swearing under penalty of perjury that the content is not infringing and that they have a legal right to publish it--and if the website owner receives a counter notice, they must restore the content within 10 days unless the copyright owner promptly runs to court to sue. If you are a copyright owner and an infringer has opted to commit perjury and keep your content up, your next and only remedy is to sue the infringer (who may well be a sad and lonely dude in the Ukraine who could give a shit), but you may not sue the website owner, because they have complied with the DMCA's safe harbor rules and are now immune.

In many ways, this is a crap deal for authors. It's a small tool to use, and the infringer may laugh in your face and keep posting your content with impunity (and you may or may not be bothered by that) knowing that, as a self-published indie, the chances of you suing are as slim as the standard Amazon review. Prior to the DMCA, when website owners were themselves on the hook for publishing infringing content, the website owners were much more cautious in removing potentially infringing content. Now with the DMCA safe harbor, they could care less, and since more content = more traffic = more revenue, the website owners have a financial incentive to have as much content on their sites as possible--infringing or not.

Nonetheless, I have had pretty good results in filing DMCA takedown requests, for now it's all that authors have to try to combat theft of their books, and while there will always be pirated copies of my book out there, you have to hunt it down, and--fair warning--more than once when I clicked on a link that purported to offer a free download of my book, my professional-grade Malwarebytes app blocked the site for detected malware.

DIY DMCA Takedown Notices
So, you've googled your book and found a few pages where your book is being offered for free download and you'd rather it wasn't. First, check that this isn't a paid subscription service that is legitimately offering your book through your aggregate ebook distributor (e.g., BookBaby, Smashwords). Once you're really sure that this is actual piracy, poke around the website until you find the link labeled "DMCA". If you can't find that, try "Safe Harbor" or simply "Legal." As part of the safe harbor rules, the website has to have a page with their safe harbor information--who you send the notice to--and they have to tell you what must be included in the notice. They may also include, in SCREAMING CAPITAL LETTERS, lots of warnings that you are subject to penalty of perjury for making any misrepresentations of fact in your notice. This page will also tell you exactly what to put in your takedown notice--include everything.

For more nuts and bolts on the actual letter, here's a great blog post from the nice folks at Science Fiction and Fantasy Writers of America: The DMCA Takedown Notice Demystified. You can send it by regular email, with the text in the body of the email.

You do not have to have filed your book with the U.S. Copyright Office to be able to use this process. Your copyright ownership becomes exclusively yours the moment you create a work that is in the scope of the copyright protections.

There have been plenty of lawsuits against entities who use the DMCA takedown notice procedures abusively--i.e., not bothering to find out if the material is allowed under "fair use" exceptions; filing takedown notices to address an issue that DMCA doesn't cover; filing bogus takedown notices as a form of harassment. These are not you. DMCA, like most laws out there (the patent system, Medicaid, the Freaking Tax Code) is susceptible to being gamed and used abusively by entities with a whole lot more resources than you or I have. Businesses and individuals hire people whose sole job is to find something that might be infringing and automatically shoot out a DMCA takedown notice. Some have takedown notices generated and sent automatically with no humans involved whatsoever. This is definitely not what the drafters of DMCA had in mind when they wrote it, although I'm sure some of the folks who commented in committee hearings raised the possibility. Courts are issuing decisions to rein in some of the abuses where they can, with the 9th Circuit (the federal appelate court that includes California in its region) issuing a ruling last month on the duty to ensure there's no fair use prior to filing a notice. On the other hand, it turns out that federal perjury is really really hard to prove, so the chances of anyone being slapped with that one are pretty slim.

I hope you have found this helpful, and I'll post more about copyright issues for indie authors in the future. If you are an indie author, you will be entering into lots of contracts and licensing agreements with a variety of entities to assist with book design, book layout, editing, marketing, and distribution. All of these transactions are loaded with legal terms that you owe it to yourself and your work to become familiar with. They are also loaded with intellectual property provisions that can affect your ability to safely publish your work. Study up and read thoroughly before signing any dotted lines/clicking on "I Agree."

Feel free to share your own DMCA experiences or insights below, and happy writing.