“If the piracy of intellectual property is allowed to continue to grow… we will not hear new voices, authors in mid-career will be stalled, and our cultural conversation will become stifled.”
So said bestselling author Scott Turow in testimony this morning before the U.S. Senate Judiciary Committee. (His written testimony is here.) I went to the hearing to learn how Congress plans to target the proliferation of offshore web sites profiting from the illegal access to creative works, from Mr. Turow’s novels to music, movies, video games, photographs and any other creative work that can be converted into ones and zeroes. My visit came a few days after a trip to see the original U.S. Constitution, but I’ll save that anecdote for the end of this post.
How are these criminal web sites in China, Russia, Belarus and other countries making money? As Mr. Turow and others noted, they are facilitated by legitimate companies — Internet service providers, domain name registrars and registers, online ad brokers, financial transaction firms, and search engines — conducting business with them.
Mr. Turow, himself a practicing attorney and former federal prosecutor, shared an experience with his latest novel, Innocent. Within the first week of publication, he said, he and his publisher found himself playing “whack-a-mole” with hundreds of pirate sites.
“I came here today with my iPad,” Mr. Turow said, holding it up to the committee. “I enjoy the benefits of the digital revolution. But it brings enormous peril, particularly for authors.”
“My concern is not to protect the interests of bestselling authors,” said Mr. Turow, speaking as president of The Author’s Guild. “My concerns instead are for the sake of our literary culture. ”
He argued that if the ability of editors to work with new authors is diminished, if the ability of publishers to act as “venture capitalists” by providing advances to authors so they can write books and survive during the long publishing cycle, we all will suffer. Citing his experience as a federal prosecutor pursuing drug lords, he said success occurred when they learned to “follow the trail of money” involving banks and other financial firms facilitating criminal activity.
Mr. Turow focused on the traditional publishing market, but piracy harms self-published authors as well. The principle of copyright as enshrined in the U.S. Constitution is that you as the creator get to decide what to do with your creative output. You can give it away. You can give away some in order to help sell others, a very common approach among many of my self-published author friends. (And often an effective one.) The problems with piracy are that (1) someone decides that they will “share” your work without your input, and (2) very often they profit from your labor, without you profiting yourself.
A witness from Rosetta Stone, CEO Tom Adams, said his company combats more than 1,000 web sites pretending to be selling its software. Customers find these sites through search engines such as Google, assume they’re legitimate, buy faulty counterfeit software with their Visa or MasterCard, then call Rosetta Stone to complain after suffering with shoddy software. Rosetta Stone “is under attack by pirates and counterfeiters… The amount of criminal activity is astounding.”
Witnesses from GoDaddy.com, Verizon and Visa all acknowledged the problem of illegal theft online is massive and growing. All three are working with copyright owners to stop cooperating with so-called “rogue” web sites. But they also acknowledged that it would be easier to act if they could do so with some legal liability protection, by responding to court orders pursued by the U.S. Department of Justice.
Late last year the Senate Judiciary Committee passed 19-0 bipartisan legislation sponsored by the chairman, Patrick Leahy (D-VT), that would authorize the Justice Department to take exactly that action. The Congress ended before more action could be taken, but Leahy and numerous others promised a new bill is on its way, and encouraged everyone interested to offer their thoughts.
Hopefully someone from Google watched the Senate’s live stream of the hearing and will share their thoughts with Senator Leahy and his committee colleagues. Google declined an invitation to testify, a move that seemed to anger Senator Coburn, Republican from Oklahoma, and others on the committee. Of course, the search engine giant pretty much ignores complaints by individual creatives suffering massive piracy, including independent filmmaker Ellen Seidler and comic book author/illustrator Colleen Doran. Google not only promotes these illegal sites in search results, it also sells many of the ads on these sites.
But my goal here is not to take shots at Google. That’s too easy. I seek to point out that there is tremendous unanimity across political parties in Washington that something has to be done to protect the rights and interests of creatives and their distribution partners. Both Chairman Leahy and the Republican Ranking Member of the Committee, Senator Charles Grassley (R-IA), praised the bipartisan consensus on this issue. “When people get along [in D.C.], it’s not very well noticed by the press,” Senator Grassley said, but of course things that are exceedingly rare are hard to spot by anybody.
“Let me be clear,” Chairman Leahy said. “The problem of online infringement is real, it’s substantial, it harms our economy, it costs us jobs, with losses of billions of dollars a year, and thousands of lost jobs… It’s a staggering number, and it’s growing.”
“The Internet needs to be free and open,” Chairman Leahy added, “but not lawless.” The good news from the hearing is that the testimony from other witnesses concurred with that view. The GoDaddy.com witness, General Counsel Christine Jones, repeatedly said that if a company like hers doesn’t cooperate with law enforcement and copyright owners, “there should be consequences.” She acknowledged that there are some out there on the interwebs who celebrate cyberspace as a refuge from rules and regulations, but made clear that position is not her personal view nor that of her company.
The day before the hearing, Mr. Turow joined with Paul Aiken and James Shapiro in an editorial in The New York Times titled “Would the Bard Have Survived the Web?” They wrote that Shakespeare and his peers were able to pursue their craft because of a clever innovation in East London — walls around theaters permitting a charge of a penny to go see a play. “Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft.”
In today’s world, the authors wrote, some Internet users, web entrepreneurs and “a handful of law professors” believe that the rights of creators are a “relic.” “It’s a seductive thought,” they wrote, “but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.”
I am a creative. I write, give some of it away (like on this blog), and try to sell some of it. As a full-time freelance writer, my words are my sole source of income. I would be over the moon to ever achieve a level of sales anywhere close to the talented Mr. Turow. But I love the fact that society and the law respects my efforts sufficiently to give me rights to my own creativity.
On Saturday my wife and I went into downtown D.C. We had a pre-Valentine’s lunch at a fun restaurant called Cuba Libre (loved their “Batata con Camarones”), then walked south a few blocks to the National Archives. After about an hour in line, we stood in front of the U.S. Constitution. Fortunately, unlike the Declaration of Independence, its ink has not faded into obscurity. I was able to read clearly this line from Article 1, Section 8, the section empowering Congress…
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
It’s been more than 220 years since that line was woven into the fabric of our lawful society. The principle behind it dates much further back, to the dawn of the printing press in the 1400s. We are now in an exciting 21st Century digtal world, but the principle remains as true today as it ever has.
As a creative I am grateful.