The Long Walk to DRM Freedom

The big debate today is still about DRM and whether it is necessary to prevent piracy . Some would argue that it is more of a sledgehammer to crack a virtual nut and mechanism that is actually failing to connect with its intended target? It is now becoming more widely accepted that it doesn’t deter professional piracy and anyone who wishes to crack it can do so with scripts which are available today on the internet. So the only people who DRM actually restricts and works against are the everyday consumers. The debate is taking a similar path as it did in the music industry, before they had that cathartic moment and went MP3. Some would suggest that it’s somewhat interesting that one of the major agents of change in the MP3 music e move at the end was Amazon and one of those that stood firm was Apple.  

DRM is about restricting, enforcing or controlling rights. In the physical book world it is basically about informing the person with the book, who owns the intellectual property and that it can’t be reproduced with permission. Obviously, the book owner can do anything they wish with the book and it was impossible for the rights owner do anything more than exert one’s rights. In the digital world nothing has changed but it is now easier to copy, reproduce, change a digital file and commercially reproduce or exploit it and therefore DRM is seen as a necessary a deterrent.

It is worth noting that without DRM we may have experienced widespread abuse as people started to use digital files. Therefore one could say it has worked and that it has given us time to adapt, understand and make the community aware of the issues. However, there comes a point when restrictions once thought as productive become counter productive. Some suggest that we have reached that point and it now time to switch off DRM, but have we considered the associated issues, or are we merely lurching into a move?

Is the removal of DRM a simple issue of switching it off, or are there associated issues that need to be considered at the same time? Will the change be a bottom up movement or will it be driven from the top down? Who will make that final move that will break the DRM shackles? Will it be the retailers , the publishers. The authors, the consumers, technology or a combination of events? The one thing that is becoming apparent is that the genie is out or coming out of the lamp. Getting it back in may be a public relations act too far.

At the heart of the issue remains the fear of the unknown, which often makes getting consensus across the industry more difficult and some would say impossible. The fear is about loss of revenues to all concerned. That lost revenue opportunity to make more money or reward for effort and creation. However, the fact is that no matter what figures are calculated, it is impossible to determine what is lost or effect would be and whether , those who take a different approach could have had the same result if they had remained within the confides of the rules. Some would suggest the It all guess work and often massaging figures to fit the argument.

As we move towards more online and towards on-demand services, then the need to download and ‘own’ actual files decreases and the protection, auditing and management required also change.  Some who are advocating a DRM free world are doing so knowing that in an online service will render DRM as we know it today irrelevant. Content truly can become agnostic when read through browser based readers. The file should actually never leave the server and when it does it is only cached locally. We have to seriously ask ourselves if we really want our library on a device or local server when we can get it 24x7 online on demand and read it literally on any device at any time and anywhere. Some would suggest  that those who say this is not the real world today may be the same people who never thought the internet would make it passed the dirt track and become the super highway we have today.

What is certain is that we will not all move and switch off DRM at the same hour on the same day and some will take time to see the light and act with great caution. So what do we need to think about as we move away from DRM?

Ownership – do we own, rent individually or subscribe to a service? This change itself demands the control of access rights and windows. Today we do not allow the first sale doctrine to digital, but in a rental world this becomes irrelevant it only remains if we sell the file to the consumer. Some would suggest that the way we have distributed digital files to all, is itself questionable and if we can’t work on a cloud based distribution ourselves how would we expect consumers to do it?

The library lending model  is perfectly suited to the online on-demand model. The commercial rental model still requires to be addressed but DRM becomes a none issue as demonstrated by services such as Bloomsbury Online and many institutional academic services.

Permission and usage rights still need to be documented and available to be viewed. A rights registry which covers permissions and sub rights would make sense but unfortunately is unlikely to happen.

Removing DRM is not about finding ways to reduce the market clout of some. This is naïve as the benefits would apply equally to them and iTunes still dominates music in an MP3 world.

So rather than debating the removal of DRM should we be now discussing how we will operate in a DRM free world and what we need to consider today to de-risk the fear that is holding us back from moving forward.   

Upload and Wait = Digital Piracy?

Today’s trade press is littered once more with assumptions about the state of book piracy and its impact on revenues and the market. This is an emotive subject which has many issues, much sensitivity and is often divorced of real facts.

Attributor, who monitor the access to illegally posted content through their FairShare Guardian service, have released a report based on their tracking of 913 books in 14 subjects in the final quarter of 2009. It estimates from this that over 9 million copies of books were illegally downloaded from the 25 sites it tracked. So they extrapolate, estimate and come up with figures which make many bestsellers and are somewhat questionable!

Four sites that made digital download data available--4shared.com, scribd.com, wattpad.com, and docstoc.com and Attributor found 3 million illegal downloads in the final quarter of 2009 of the 913 books followed. They then claim that based on 53,000 book takedown notices sent out to various Web sites in the second half of 2009, that these sites represent about 30% of all book piracy.

We found ourselves questioning what an ‘illegal download’ was and if Attributor can identify one, why can’t Scribd, Wattpad, 4shared and docstoc? They claim to have found illegal copies of “Freakonomics,” by Steven D. Levitt and Stephen J. Dubner, that were downloaded 1,082 times and “Angels & Demons,” by Dan Brown, 7,951 times. This would hardly adds up to 3 million.

Irrespective of the numbers, these sites continue to hide behind the skirt of the US ‘safe harbor’ protection and are merely continuing to react on take down notices?

We have written extensively about the Scribd service and its ‘post first and wait’ approach to copyright, claiming they nothing but offer a service and the onus is on the owner to prove ownership and issue a takedown notice. Some would suggest this sounds similar to some sharing services of the past. Attributor claim 53,000 in 6 months last year! So something is clearly no working and all is defiantly not well in the state of sharedbookworld.com.

Tammy Nam, Scribd’s VP of Content and Marketing says that “People used to call us the ‘YouTube of books’ given all of our user-generated-content,” and then says. “But now, given the amount of professional content we have, we’ve become more like the ‘Hulu of books.’ Some may ask why not a reference to being the ‘PirateBay of books.’

Scribd, is less than 3 years old, hosts over 10 million digital documents which it defines as ‘books’ if they run to more than 100 pages. So we even have some issues in defining a book! It now claims some 2 million visitors a day and what it sees as the number one position. Obviously it has been seen by many as an attractive channel and some 150 publishers have joined Scribd and now Scribd has also moved into newsprint and is become the home for journalists to post their documents.

Scribd is trying to be proactive with publishers on copyright. Instead of merely working on a reactive take down basis they now offer publishers the opportunity to provide Scribd with e-book files for sale on their e-commerce site. In doing so the publisher can also allow them to use those files to filter all user uploaded content and if it matches they can automatically suppress the upload. Some would say this is a very clever tactic of getting content and license to sell it based on the premise of blocking illegal files. If you don’t give them the file, the alternative is that they do nothing and hide behind their ‘safe harbor’.

We think someone is kidding someone here and what is still required is proactive protection, accountability and responsibility.

Finally, we would also suggest that it isn’t the publisher we should be concerned about but the author and their lost royalties that they have entrusted with the publishers.

Book Piracy: A Case of Whack-A-Mole

Last month we wrote about the issue of digital book piracy and along with others such as Peter Cox at Litopia, raised the bar on the public awareness of the issue. Today the New York Times wrote an article ‘Print Books Are Target of Pirates on the Web’, which again raises the agenda further.

One quote from the article which can best describe the problem was made by Russell Davis, an author and president of the Science Fiction and Fantasy Writers of America, a trade association that helps authors pursue digital pirates who said “It’s a game of Whac-a-Mole, you knock one down and five more spring up.”

When Litopia raised the issue of Scribd, some said it was unfair and the site shouldn’t be targeted, as it tried and was responsive when take down notices were sent. Others said the same about Wattpad. Our defence would be to browse Scribd and see the volume of taken downs that have been actioned and where they state the file has been removed. There isn’t a takedown without an infringement!

Some say that piracy is small and only the same as shrinkage and theft in physical stores, but is that a real excuse, or merely a case of apathy?

Plead all they can, the sites simply allow any material to be posted and only if it is a know infringement, or they get a take down notice, do they respond. They may claim that taking proactive action could land them with the liability so to take no proactive action is safer. The problem is that the mechanism of the DMCA (digital millennium copyright act) is inherently flawed, as it is retrospective action and is like trying to put the cat back in the bag – its too late its out its out and having kittens!

The efforts being expended by publishers in tracking infringements is growing, with many large house having to have dedicated staff continuingly trawling, tracking and issuing take down notices. This may work for the large corporate, but is it realistic across the thousands of medium or small publishers? Some may say that it’s like giving each a shovel and asking them to all to ‘wack-a-mole’?

Today we are only talking about whole works and not even attempting to cover part works or content of sufficient size to warrant permissions. Rather than build infringement databases that just generate take down notices, why not address the problem. We are trying to manage a rights business with no rights management.

This has been raised over and over and the proposed BRR registry isn’t the answer but only part of the answer. We have bibliographic agencies who catalogue all titles. We know that you can’t resell a digital file and each rendition and manifestation is unique. We have identifiers which identify genuine booksellers, publishers, libraries. Yet we can’t join the dots up and create a proactive environment. Some may say that we let businesses hide behind ineffective DCMA.

If leadership is not taken, then we may all find that ‘Whack-a-Mole’ becomes an increasing part of the publishing business.

Copyright Infringement Consistancy?

Peter Sunde, Frederik Neij, Gottfrid Svartholm Warg and Carl Lundstrom were collectively found guilty of promoting copyright infringement this week by a Swedish court. They were heavily fined and also each was sentenced to a year in prison. These were the men behind The Pirate Bay, the world's most high-profile file-sharing site.

This rare victory for the entertainment industry could have some double edge implications and now exposes the inconsistency of approach to piracy across borders and media sectors.

The Pirate Bay defendants claim that although shocked by the severity of the judgement they openly expected to loose. The fine of $4.5 million was a fraction of the $17.5 million sought and the ensuing appeal process is likely to be drawn out and long with The Pirate Bay now have nothing to loose and determined to fight on. Every piece of press creates further awareness of the dangers of piracy, the challenges of protecting copyright and also gives the pirates the publicity and market awareness they crave. Some say it also elevates them within an anti establishment sub culture.

Unlike Napster, Kazza and other from the past The Pirate Bay has been found guilty of not storing materials or distributing materials but in providing links to materials. Sunde claims that in doing this, they are not different how services such as Google and search engines work. An interesting perspective when we consider the basis of the Internet itself is based on links, indexes and search and discovery.

The book industry challenges to digital infringement have not followed the hard line of the music industry. There is the Scribd, Wattpad and eBay piracy files which are not links but hosted or sold product. Yet we see no court action, just a take down notices and slapped wrist behind closed doors. As we have said before we don’t say this is wrong but that we should have a public awareness of the files and offenders. Then there is the Great book Bank Robbery where the party challenged could be seen by many to being rewarded for their infringements. Also rewarded with something that any party involved owned and granted a monopoly of it to boot! This sends out what message?

Copyright will remain a digital battleground but consistency and education are important if the general public are to be brought onboard.

Dot2Dot

Book publishing can always learn from other media sectors. The environment may be different but the similarities are often stark and can’t be ignored. Many will try to argue that the differences are so huge that the comparison between media sectors is inappropriate, but the more we watch the media world unravel and morph from one model to another, we start to see the same or similar warning signs.

The old world created media conglomerates that controlled the channel, the creative process and focused on their market share. These grew swallowed each other up to the point where they could hardly grow any bigger. The result was that the corporate blue chip publisher ruled. This worked within the physical world where the controller of the supply chain reaped the economies of scale and the 80 / 20 economic model prevailed. However, the digital world effectively turned this upside down. As we have seen so many times, the Internet doesn’t respect corporate size and actual revenue, it respects eyeballs and potential revenue. We remember those, who ten years ago said Amazon would not survive, was over valued and the likes of Bertelsmann would crush them. The old world saw one Goose, the new world saw the Golden Egg.

Enter the omnivores who were not tied to any sector and were driven by moving technology, valued on the number of visitors and their potential pulling power, rewarded maybe by advertising. They often viewed content, on whatever format, as merely a means to an end. Also enter those from the technology sector who wanted their technology to dominate and were often focused on shifting tin or software, not content.

We now have upheaval in music, which has never recovered from Napster and continues to unravel. Newsprint and magazines could always rely on advertising. That was until the Internet stared to grab it before the newspapers could grapple with the digital shift. The film industry had a great release model that controlled what, where and when films could be seen. However, this only fuelled the pirates offer to beat both the release schedule and the price. This month gave us the ultimate piracy with the pirates even beating the release of “X-Men Origins: Wolverine” , not by a day, but a whole month!

We hear one name repeatedly – Google. Their quest to make YouTube deliver stronger revenues has created new battles with the music industry bodies, such as PRS and the artists themselves. Peter Waterman’s composition ‘Never Gonna Give You Up’ experienced a phenomenal 154million YouTube downloads, yet he only received £11 royalty from Google. Google now want to create Vevo.com in collaboration with Universal. But who will win from the envisaged new revenues? When Bono first suggested the marriage, he must have envisaged the artist winning, but we reserve judgement.

Google News grapples with the newspaper world on whether their use of snippets is ‘fair use’ or infringement. Some would say that they have the newspapers over a barrel, others that its time the newspapers stood up.

Google Book Search and the land-grab settlement, has had not nearly enough written about it.

When will the media sectors join up the dots?

Scribd Trips Out of Litopia

Litopia After Dark started as usual last night and had a special guest – Trip Adler, CEO of Scribd. Having identified and highlighted the issue of copyright infringement in the UK media, Peter Cox had invited Adler to come on the show and discuss the issue of digital piracy on his site. Adler who had agreed, didn’t show and his direct line went straight to his answering machine and record.

Did he get the time wrong? Was he called to an urgent meeting? Did he feel that there was little to answer and little point to the exercise? We will not know what his motives were only the sound of his answering machine.

Whether we like it or not, we all have to face our critics, but more importantly some would say that we must face them when we are found to be in a questionable position. Whatever the rights or wrongs, Scribd had been found displaying copyrighted materials, which could be copied and further infringed. Scribd had an opportunity to support and been seen to support copyright protection.

Book publishing is at a digital turning point where the door of opportunity is opening, but it is also opening the door of infringement. We have seen the damage done by the pirates to other media sectors and should be taking steps to minimise the risk to book publishing. Is the threat new – no. Can we stop books being scanned – no. Can we stop infringement – no, but we can make it difficult.

So we need to ensure digital copies of books are not pirated. We will never stop the hardened copier be they malicious or professional and stopping ordinary consumers has posed a challenge to other media sectors. In these days when it costs relatively small amounts to scan and digitise books its not the digital renditions that are the threat but the physical ones. Watermarking physical copies may help but we would suggest it is inappropriate and ineffective – if they want to scan it they will.

Some would suggest that publishers such as Random House and Simon and Schuster should reconsider their new arrangements with Scribd and others until such time that they have taken proactive actions to clean up their site?

Today we operate a take down notice approach covered by laws such as the DMCA. Yes it works and often the offending material is taken down promptly, but it may be only one manifestation or instance and more importantly, its reactive not proactive. Once the cat is out the bag for a minute its likely to have many digital kittens.

We believe that unlike physical copies of books it is impossible under copyright to resell a digital rendition or make a copy of it to share with others. Obviously public domain works have different issues. So if that is correct, or we would suggest half correct, why not establish a seller licence or approved seller policy. Scribd, eBay, Wattpad whoever can block all digital renditions of books being sold, posted, linked, uploaded unless from an authorised licensed body. In a digital world this is not difficult to achieve if the will is there. Ok there will be ways around it and it may cost money, but its better than expecting thousands of copyright owners to check thousands of sites everyday and issue potentially hundreds or thousands of take down notices after the cat is out of the bag.

Exposing the Pirates

We applaud the UK Publishers Association for their development and free members access to a powerful new tool, which simplifies the process of having infringing content taken down. The tool effectively distributes the workload and leverages the benefits of information sharing between members. Members simply log, enter the details of the infringement. The system identifies the ISP, checks for repeat infringers, and automatically drafts and serves an appropriate notice.

More info at http://www.publishers.org.uk/en/home/enforcement/copyright-infringement-portal/

This is a great start. Unlike many of the other media sectors book publishing is not consolidated and there are thousands of publishers and copyright owners. Asking them all to police this is unworkable. But it goes past publishers and also impact agents and authors and they should surely also have access and share the same resource. Then we have the global position and yet more fragmentation. Finally we have the orphan works which will be unable to be defended. Who will protect them, or are they fair game for all?

If we are to have any hope in suppressing the pirates we must move from reactive measures to proactive ones.

We would go further and suggest that industry papers such as the Bookseller and PW should publish the statistics, a worst offenders top ten and raise the profile, such that it becomes uncomfortable for those merely waiting for take down notices and not doing anything to avoid them. Naming and shaming could work both ways, but we would suggest that it should also start to raise public awareness now before it becomes an epidemic. The public conscious must be raised and as proven this week in Sweden, many will wish to live within the law. The key is not to go after the individual’s but to stop their source of distribution and close down their visibility.

More Digital Piracy

Last week we reported on the questionable ebooks for sale on eBay, now today the Times covers similar abuse on Scribd.com ‘Authors fight free books site Scribd for ‘pirating’ their work’ where the paper found copies of Harry Potter and the Half-Blood Prince and Ken Follett’s World without End among many bestselling titles available. The Californian Scribd website claims to be the most popular literary site in the world attracting some 55 million visitors a month.

Scribd operates a ‘notice and takedown system’ under the US Digital Millennium Copyright Act, which means that the site is not held liable for actions of its users of which it is not aware. However, are publisher now to employ watchers who sole job is to search and discover infringement and serve notices? Some would say that many already do and their associations are very active but surely the service providers must know that content is illegal or at best dubious. It doesn’t take a lot of intelligence to spot the questionable items on eBay so why are they allowed to place them?

Everyone’s worst nightmare is that books follow the same route as music and instead of being ripped off the books are merely scanned. Some would argue that by imposing strict DRM you invite the pirates in and others that without DRM you invite the pirates in. What is clear is that digital books are now visible and the cracks unfortunately are starting to appear. We can lock up the digital copy with DRM, embed digital watermarks but the physical copy can be still scanned by increasingly sophisticated scanners. Many of the books that are raising eyebrows are not available today digitally so it’s fair to assume the source is the physical book.