This article originally appeared in TidBITS on 2012-01-16 at 10:58 a.m.
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The Other Side of SOPA and PIPA

by Adam C. Engst

Don’t get me wrong. I’m utterly against the proposed U.S. legislation known as SOPA — the House of Representatives’ Stop Online Piracy Act — and its sibling PIPA — the Senate’s Protect IP Act — for all the reasons that Joi Ito, the director of the MIT Media Lab, outlines in his blog post [1] about why the Media Lab has officially come out against these insanely overwrought bills. In short, these bills enable the content industry to upgrade its weapon for fighting copyright infringement from a tiring-to-wield club to a nuclear-tipped ballistic missile that would cause far more collateral damage than can possibly be warranted by the offense.

But while I cannot support SOPA and PIPA in any way, I wanted to provide a perspective generally lacking in these discussions — that of a tiny publishing company whose ebooks are regularly used without permission.

I say “used without permission” instead of the charged words “pirated” or “stolen,” because neither is accurate. “Piracy” has become watered down in the context of software copying and with the rebranding of pirates as lovable rogues with pet parrots rather than the homicidal maniacs they were, but it still carries a whiff of Robin Hood-like taking from the rich to give to the poor.

But that seems inappropriate, given that content, whether it’s music, video, or, in my case, books, is essentially a luxury good. No one needs the newest Lady Gaga hit or even the latest Take Control ebook to put food on the table. Plus, though it’s possible to see major music labels as responsible for a certain level of cultural hegemony that’s worth railing against, I hope no one sees our mom-and-pop company that way. Similarly, “stealing” doesn’t precisely fit the act of making a digital copy — no one loses anything other than the opportunity to make a sale, assuming the party who made a copy would otherwise have purchased it.

All that said, I hate it when I see our ebooks show up on file sharing sites for anyone to download in their entirety. I can’t prove that it hurts our business and thus our authors. Nor can I show that it helps in any concrete way. But I can say that it bugs the hell out of me, to the point where I wanted to address a few common myths about online file sharing, at least from the perspective of a small ebook publisher — I can’t speak to how things might be different for large music or movie studios.

“Exposure is all good.” -- Some people rationalize widespread copying by suggesting that it’s actually good exposure for the author or the work. In my experience, this is wrong, despite Tim O’Reilly’s famous point that obscurity is the problem, not piracy.

The problem is that the way most of these people talk about exposure is meaningless, and harkens back to the dot-com bubble days when Internet startups had business plans that started with the size and growth rate of the Internet and jumped immediately to Profit With a Capital P. Having a potential large audience is a good first step, but it is by no means sufficient on its own.

We see this with Amazon and the iBookstore. Many people think that merely appearing in Amazon’s catalog will result in huge sales, and with the massive success of the iPad, the iBookstore is thought to have similar clout. It is true that if your books aren’t for sale in those venues, no one will buy them there, but in reality, appearing in those catalogs will mean only a handful of sales if there is no supporting marketing.

Back to widespread copying. The claim that “well, my book has been uploaded to all the file sharing sites, so at least I’m getting a lot of exposure” is bunk. BitTorrent may have 150 million users, but how many of them are searching for your book? Few, if any, just like on Amazon and the iBookstore. And those who do, unlike Amazon and the iBookstore, are assuming they’ll download your book for free, not buy it. This is considered good?

Don’t believe me? Look at your Web logs. In December 2011, Microsoft’s Bing search engine, which also powers searches on Yahoo, accounted for 5.3 billion searches. That’s a huge number for those who believe in the power of raw exposure. But on the Take Control Web site, we received a whopping 222 searches that came from Bing and Yahoo, and, as far as I can tell, no sales. In other words, the exposure of appearing in Bing’s search engine was worthless.

Or, think about Web banner advertising. There’s no way to know how many people actually look at an ad on a Web site that’s delivered to a page they’re visiting (that’s the exposure number), but we know that the click-through rate on banner ads is well under 1 percent. And that’s in a situation where the advertiser is trying hard to be found.

One last point: Claims of the massive utility of social networking fall squarely into this category for us as well. We tweet about our book releases, and those tweets are often retweeted by authors and other friends (an always-appreciated and gratifying act!). Who knows what the total “reach” of those tweets is — it could be tens to hundreds of thousands — but the number of people who buy an ebook because of them is vanishingly small, which we know because of a tracking code we embed in tweeted URLs. In the first 11 months of 2011, we sold a grand total of 46 books via Twitter, out of a total of tens of thousands.

In fact, our lifetime total of trackable Twitter-driven sales, for the record, is 186, so you might ask why we bother tweeting at all. Apart from simply being present in a shared space, it’s because there is undoubtedly a small but positive halo effect from recommendations on Twitter — sales to people who buy through a direct link some time after seeing a recommendation. Plus, it’s always good to provide an opportunity for friends and fans to be supportive.

So there are two seemingly contradictory conclusions to draw here. On the one hand, for the Take Control series, the “exposure” of having a book uploaded to the file sharing sites is no more measurably helpful than appearing in the Bing search engine — essentially no one is being exposed to it. On the other, it’s not as though significant sales are being lost, especially given that it seems unlikely that those who fail to find the book on a file sharing site would then go buy it.

Tim O’Reilly is right. Obscurity is the problem, not piracy. But that doesn’t mean piracy will, on its own, address the obscurity problem. That’s what promotion is for, and promotion is one of the key roles of publishers and retailers. This is not to say that widespread copying can’t be a part of promotional efforts. The authors who give their books away successfully — Cory Doctorow and Seth Godin are the best examples — do a fabulous job of self-promotion. But they have carefully designed business models (give away ebooks while selling print copies) that work for them because of the quality and type of books they write (well-received science fiction and business books), their relationships with their publishers, speaking fees charged partly on a basis of their reach, hard work, and, I presume, some luck (given that few others have replicated their success).

Indeed, giving books away can be an excellent promotion, but you have to be realistic about what it can do. In 2010, we licensed Joe Kissell’s “Take Control of Passwords in Mac OS X, Second Edition [2]” to AgileBits (the 1Password people) to give away to their customers for a limited time as a holiday present, along with a 50-percent-off coupon for that same audience. It was a great promotion, and while we don’t know how many people were exposed to the offer, over 38,000 downloaded the book. We have no way of knowing how many of those people will ever order another book from us, but from a marketing perspective, it was a big win. From a sales perspective, though? Also a win, but 2 orders of magnitude smaller — only 373 people took advantage of the sale.

“Copying is harmless.” -- If you believe my claims so far that widespread copying has little effect, why am I bothered by it? A few reasons:

(Just so you know, the file hosting sites base their business models on making it hard to download files for free. Their goal is to get people to pay for a premium account that will have faster and easier downloads. Once, in trying to have one of our books removed, an employee of one of the hosting sites admitted they didn’t actually have the book for download; they just pretended to in order to con people into signing up for premium accounts. The indexing sites, on the other hand, are pure ad plays: they want as many eyeballs as they can get.)

“The DMCA is good enough.” -- This is the closest I get to approving of SOPA. There’s a belief that the DMCA (Digital Millennium Copyright Act) is a draconian law that gives content creators significant powers. I know that lawyers for large corporations can attempt to twist the DMCA to their needs, but from the perspective of a small publisher, the DMCA is only minimally useful in preventing widespread copying. Here’s how it works.

I have a Google alert set to look for copies of our ebooks that are being shared on the Internet. Google doesn’t search the file hosting sites directly, but it does search all the indexing sites. When I get an alert that one of our books is available for copying, I immediately go to the indexing site, follow the links to the file hosting sites, and file DMCA takedown notices with them.

It’s important that I do this quickly, for several reasons. First, the indexing sites seem to copy one another, so if one of our books appears on one of them, several more will pick it up within a few days. Second, some of the indexing sites attempt to defeat DMCA takedown notices by downloading the book from one file hosting site and then re-uploading it with a different name to the same hosting site and four or five others. That way they get a “private” copy that’s less vulnerable to being taken down and that causes me more work.

Also, while filing a DMCA takedown notice isn’t hard, it’s not instantaneous either. I’ve automated it to the extent that I can copy the URL of the offending page, create and address a new email message in Mailplane, and invoke a Keyboard Maestro macro that builds the customized takedown message (and records the URL for future reference). Some sites require that I fill out complex forms to submit a takedown notice, which increases the effort tremendously. But the real problem is that it’s seldom a matter of filing one DMCA takedown; because the indexing sites often list related pages, each of which will link to four or five file hosting sites, I often end up filing numerous takedowns at all once. To give you an idea of the severity of the problem, I’ve filed DMCA takedowns in nearly 1,000 instances. That’s a lot of time.

With the larger file hosting sites, the DMCA takedowns are quick, and that prevents the indexing sites from spreading the files further. But the indexing sites are even shadier, and either don’t accept DMCA takedowns at all or just ignore them. No matter what, though, I never get the sense that either of these types of sites give a damn. My DMCA takedowns are nothing more than an annoyance to them.

Oh, and BitTorrent? Because of the peer-to-peer nature of the sharing and the way the torrent search engines work, there’s no way to issue a DMCA takedown notice. So I don’t have a lot of sympathy for BitTorrent. (And yes, I’m fully aware that BitTorrent and the file hosting services can and are used for legitimate purposes; I strongly suspect that their legitimate uses are a small fraction of overall usage.)

Web-based file sharing used to be more of a problem. In mid 2011, Google changed its search algorithm so that the indexing sites are significantly deprecated in search results. Before this, it was possible to search for the title of one of our books and have a free download link appear on the first page of the search results. That was truly concerning, since Google was presenting legitimate and illegitimate methods of acquisition with nearly equal rank.

Again, if I don’t believe these sites are harmful, why am I going to all this effort? First, it really did seem for a while as though if they weren’t stopped, the free downloads would become more popular than our actual pages in search results. And second, if my takedowns are an annoyance, good! If anyone is the victim here, it’s me, and if all I can do is cause them extra work in removing my files, that’s what I’ll do. In my wildest dreams, the extra work will make the business model enough less attractive that they’ll shut the sites down.

So, in the end, let’s bury SOPA and PIPA back under the rock from which they crawled, but let’s not pretend that widespread copying is necessarily a good thing or that the companies that SOPA and PIPA intend to target are anything but sleazeballs out to make a buck off the hard work of others.

[1]: http://joi.ito.com/weblog/2012/01/15/why-we-need-to.html
[2]: http://www.takecontrolbooks.com/passwords-macosx?pt=TB1109