“And Stay Down!”: Tweaking the DCMA

ebook piracyPirate websites are among the banes of the indie author – and of traditionally-published authors, as well. But the Authors Guild, of all organizations, has suggested a fix.

The move comes as the House Judiciary Committee is looking into a possible overhaul of U.S. copyright law. First, the basics: Copyright is different from publishing rights. In the United States, for works created after January 1, 1978, the creator of the work holds the copyright for his or her lifetime plus 70 years. You, as the copyright holder, may sell various types of publication rights – including film rights and foreign language rights – to others. But you’re not selling them your copyright. What you’re doing, in effect, is giving them a license to market the work you created and own. They then share the profits with you.

The difference with a pirate site is there’s no profit-sharing. They just slap up a copy of your book and sell it, and keep all the cash for themselves. The U.S. Digital Millenium Copyright Act, or DCMA, provides a solution: you can send a notice to the owner of the offending site and tell them to take down your book. Melinda Clayton explains how to send a DCMA notice here.

But just because a pirate takes down your book, it doesn’t mean it stays down. Sometimes, the same pirated copies go right back up on the site. It’s like playing whack-a-mole. And the internet service providers for these pirate sites have been getting off the hook by saying they had no idea it was happening.

What the Authors Guild has proposed is to change “Notice and Takedown” to “Notice and Stay-Down.” In other words, webhosts would have to take “reasonable measures” to ensure that “all infringing copies” stay off their network of sites. Otherwise, they could be prosecuted. It takes the job of enforcement away from authors and puts it with the webhosts who give the pirates their bandwidth.

This is only a proposal so far, but we’ll keep you posted on its progress.

To be clear, not every mention of your book on a strange website is an instance of piracy. Far more often, some enterprising crook will set up a site that skims book covers and descriptions from Smashwords, and then offer the books for sale – but before the customer can download the file, they have to give the crook a credit card number. In those cases, the site never had the book in the first place. It’s just filler content to entice the clueless to hand over their credit card. You could send all these guys DMCA notices, but that way lies madness.

(DO NOT let anyone else, including your publisher, copyright your work. This is apparently a fairly common practice with contracts issued by university presses. But as Arlene Chase notes here, that can lead to a whole host of problems. First and foremost, you’re not going to be able to sell any sorts of rights to anyone else if you’re not the copyright holder. And if your publisher has disappeared down a rabbit hole, it’s going to be a long and potentially costly legal challenge to get it back.)

More questions about copyright? We have a whole page of terrific legal resources for authors here. If you can’t find an answer to your question there, let us know via the contact form and we’ll try to get it for you.

Author: Lynne Cantwell

Lynne Cantwell grew up on the shores of Lake Michigan. She worked as a broadcast journalist for many years; she has written for CNN, the late lamented Mutual/NBC Radio News, and a bunch of radio and TV news outlets you have probably never heard of, including a defunct wire service called Zapnews. But she began as a fantasy writer (in the second grade), and is back at it today. She currently lives near Washington, DC. Learn more about Lynne at her blog and at her Amazon author page.

16 thoughts on ““And Stay Down!”: Tweaking the DCMA”

    1. Thanks, Wendy. It really isn’t fair to leave the onus on the author/publisher to ferret out these scams. Webhosts need to bear some responsibility, particularly when a site has been known to traffic in pirated stuff before.

      1. It’s your copyright, and it’s your pocketbook. Why should anyone else have to protect it?

        Let’s turn it around. What are you doing to protect my income?

        1. I’m not hosting your site, Nate, so I guess my obligation to protect your income is zero. 😉

          I hear what you’re saying, and that’s exactly the out that webhosts have been using. But don’t you think they bear some responsibility for illegal activity run out of their servers? If you rented space in your house to a drug dealer for his meth lab — and you knew it was a meth lab because the cops had busted him for it before — wouldn’t you bear some responsibility for continuing to rent to the guy? I think that falls under aiding and abetting, at the very least.

  1. Thank you Lynne. That is great information, especially the difference between “copyright” and “selling rights”. Perhaps a “Buyer Beware”, should also be disseminated to the public regarding credit card scams.

  2. Another thing the pirates do is download a copy of your book when it’s free – probably using automated ‘bots – then advertise your book for free when you go to their site. Once there, you’ll be hit by either malware or some other marketing scam. I know because I’ve found one of my books there.

    As for the DCMA, it’s a great idea in principle, but I doubt the Authors Guild has enough clout to get it through past the objections of the ISPs. Would be nice though, if they could.

  3. Thanks for the info, Wendy. And a special thanks for the warning about sites that want Credit Card info. Many such sites offer “free books” but ask people to become members by giving their info. Then they use it to steal identities…

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