Posted by Victoria Strauss for Writer Beware®

I've gotten several alerts over the past week about a pirate site that's new to me (though not new: this warning was first published in September 2017): Kiss Library, where many authors are finding unauthorized electronic versions of their books.

Kiss Library differs from the typical pirate site in a couple of ways. Unlike, say, Ebook Bike, run by serial copyright thief and "information wants to be free" ideologue Travis McCrea, it doesn't simply offer pirated books for free download, but appears actually to be selling them. Also unlike Ebook Bike and other pirate sites, it seems to promptly respond to DMCA notices.

I found two of my own books listed.

I filled out the form on Kiss's DMCA page, and within minutes my books vanished from the site. I also received this email:

Awwww. How nice. They're contrite! It's not their fault! They'll pay back the illicit profits! They are so transparent about the whole thing!

Except...it's bullshit. They send the exact same response to everyone. Here's someone who got it in July:


A friend of mine got it in March. Someone else got it in 2018. Kiss seems to have concluded that it's better to lose a few listings (which can always be reinstated later) than to make waves by ignoring authors or telling them to f*ck off. It's a different strategy from the "fight everything" stance of many pirates, or those that send takedown notices into oblivion--and it's probably why Kiss, with its huge, monetized catalog of pirated books, hasn't sparked the uproar other pirate sites have.

It's been suggested that Kiss doesn't actually take down disputed books: it simply blocks the IP addresses of anyone who sends a DMCA request so they can't see that the books are still on offer. I've no idea if this is true.

Also, there's the question of whether Kiss really offers the books at all--whether it's nothing more than an elaborate phishing scheme that uses books as bait. I followed purchase links all the way to the point of providing credit card info, but I didn't dare do more. This anti-piracy service, however, did:

An interesting fact is that they actually don't even have the books they are selling! The catalog is automatically generated from indexing Amazon author pages.
We know this because we tried to buy a clients ebook out of curiosity..

— DMCA | Anti-Piracy Service | Pirat.io (@pirat_io) August 8, 2019

Exactly! This why we tried to purchase one of our authors eBooks to see if they could deliver the content.
We never received anything. -Eric

— DMCA | Anti-Piracy Service | Pirat.io (@pirat_io) August 8, 2019

So if you visit the site, be careful. Send the DMCA if you find your books, but don't try to test the system by buying anything.

Kiss's About page features a photo of smiling millennials and a Canada address. Kiss originally had a .com domain, registered in 2017 by a Gibraltar-based registrar that was shut down by ICANN this past March. Its current .net domain, which is just 6 months old, is registered to Legato LLC, a Russian company. Make of that what you will.

UPDATE: An update from the anti-piracy service:

Hi Victoria, sorry for the late reply. I wanted to ask the dev and legal dpt. regarding this. The website didn't seem to be hosting any phishing or malware. Its just an elaborate scheme profiting from pirated content. We also used a dummy PayPal account for this testing. -Eric

— DMCA | Anti-Piracy Service | Pirat.io (@pirat_io) August 9, 2019

So maybe there's no content on the site--just book covers--and all they're doing is taking the money and running.

ANOTHER UPDATE: Per this Facebook post from Tamara Thorne, the Authors Guild is aware of Kiss Library and is preparing a statement on the status of the matter and steps they are taking. I'll link to or post it here when it's released.

UPDATE 8/10/19: Well, that didn't take long. Thanks to an alert commenter, I visited Kiss Library this evening and found this:


Not only have they reinstated the two books I DMCA'd (with different covers; they're both backlist books that I re-published with Open Road Media), they've added my two other Open Road backlist books, and a pair of fake books put up by a Writer Beware-hating troll a few years ago as part of a harassment campaign. Think the Kiss Library folks know about this post?

UPDATE 8/11/19: Oops, gone again (except for the two fake books that use my name). Someone is following Writer Beware!

Posted by Victoria Strauss for Writer Beware®

The enormous digital archive that is the Internet Archive encompasses many different initiatives and projects. One of these is the Open Library Project, a huge repository of scanned print books available for borrowing in various digital formats.

Unlike a regular library, the IA does not purchase these books, but relies on donations to build the collection. Nor are permissions sought from copyright holders before creating the new digital editions. And although the IA claims that the project includes primarily 20th century books that are no longer widely available either physically or digitally, the collection in fact includes large numbers of 21st century books that are in-copyright and commercially available--and whose sales the Open Library's unpermissioned versions have the potential to harm.

Most professional writers' groups consider the Open Library to be not library lending, but massive copyright violation. Many have issued alerts and warnings (you can see SFWA's alert here), and many authors have contacted the IA with takedown requests (to which the IA was not always terrific at responding; you can see my account of my own frustrating experience here).

In the fall of 2018, a novel (and disputed) legal theory was created to justify the Open Library and similar initiatives, called Controlled Digital Lending (CDL). CDL's adherents present it as "a good faith interpretation of US copyright law for American libraries" seeking to conduct mass digitization projects, and invoke as support the "exhaustion" principle of the first sale doctrine (the idea that an authorized transfer of a copyrighted work "exhausts" a copyright holder's ability to subsequently control the use and distribution of  that copy; this is what allows used book sales, for example) and the fair use doctrine (a complex principle that permits the copying of a copyrighted work as long as the copying is limited and transformative). As long as the library restricts its lending in ways similar to restrictions on the lending of physical books (for instance, allowing only one user at a time to access each digital format), CDL holds that creating new digital editions of in-copyright books and lending them out is fair use, and copyright holders' permission isn't necessary.

Libraries in particular have embraced CDL. Publishers' and writers' groups...not so much, especially in light of a recent legal decision that rejected both the first sale doctrine and fair use as basis for re-selling digital content. Here's the Authors Guild:

CDL relies on an incorrect interpretation of copyright’s “fair use” doctrine to give legal cover to Open Library and potentially other CDL users’ outright piracy—scanning books without permission and lending those copies via the internet. By restricting access to one user at a time for each copy that the library owns, the proponents analogize scanning and creating digital copies to physically lending a legally purchased book. Although it sounds like an appealing argument, the CDL concept is based on a faulty legal argument that has already been rejected by the U.S. courts.

In Capitol Records v. ReDigi, the Second Circuit held that reselling a digital file without the copyright holder’s permission is not fair use because the resales competed with the legitimate copyright holder’s sales. It found that market harm was likely because the lower-priced resales were sold to the same customers who would have otherwise purchased new licenses. In this regard, the court emphasized a crucial distinction between resales of physical media and resales of digital content, noting that unlike physical copies, digital content does not deteriorate from use and thus directly substitutes new licensed digital copies.

The same rationale applies to the unauthorized resale or lending of ebooks. Allowing libraries to digitize and circulate copies made from physical books in their collection without authorization, when the same books are available or potentially available on the market, directly competes with the market for legitimate ebook licenses, ultimately usurping a valuable piece of the market from authors and copyright holders.

For a more detailed deconstruction of CDL's arguments, see this statement from the Association of American Publishers.

Flash forward to 2020, and the coronavirus pandemic crisis. Last week, the IA announced the debut of the National Emergency Library--really just the Open Library, but with some new provisions.

To address our unprecedented global and immediate need for access to reading and research materials, as of today, March 24, 2020, the Internet Archive will suspend waitlists for the 1.4 million (and growing) books in our lending library by creating a National Emergency Library to serve the nation’s displaced learners. This suspension will run through June 30, 2020, or the end of the US national emergency, whichever is later.

During the waitlist suspension, users will be able to borrow books from the National Emergency Library without joining a waitlist, ensuring that students will have access to assigned readings and library materials that the Internet Archive has digitized for the remainder of the US academic calendar, and that people who cannot physically access their local libraries because of closure or self-quarantine can continue to read and thrive during this time of crisis, keeping themselves and others safe.

What this boils down to, under all the high-flying verbiage: the IA is ditching the one-user-at-a-time restriction that is one of the key justifications for the theory of controlled digital lending, and allowing unlimited numbers of users to access any digitized book in its collection.

The Authors Guild again, on how this harms authors:

IA is using a global crisis to advance a copyright ideology that violates current federal law and hurts most authors. It has misrepresented the nature and legality of the project through a deceptive publicity campaign. Despite giving off the impression that it is expanding access to older and public domain books, a large proportion of the books on Open Library are in fact recent in-copyright books that publishers and authors rely on for critical revenue. Acting as a piracy site—of which there already are too many—the Internet Archive tramples on authors’ rights by giving away their books to the world.

Here's just one concrete example. Katherine Harbour's Nettle King is available for borrowing in the National Emergency Library as a scan, an EPUB, and a PDF (the IA's EPUB versions are OCR conversions full of errors). Published in 2016, it's also "in print" and available on Amazon and other online retailers as an ebook, in addition to other formats. The IA, which never bought a digital license to Ms. Harbour's book and scanned and uploaded it without permission, now is proposing to allow unlimited numbers of users to access it, potentially impacting her sales. How is this any different from a pirate site?

Announcement of the National Emergency Library has been greeted rapturously by the press and by libraries. Less regarded has been the flood of protest and criticism from authors and professional groups. In situations like these, authors and publishers tend to be dismissed as greedy money-grubbers who are putting profits ahead of the march of progress and the noble dream of universal access to content...despite the fact that authors' right to make money from their work--and, just as important, to control the use of it--springs directly from the US Constitution, and has been enshrined in law since 1790.

In response to the outcry over the National Emergency Library, the IA has issued a justification of it, citing the "tremendous and historic outage" of COVID-19-related library closures, with "books that tax-paying citizens have paid to access...sitting on shelves in closed libraries, inaccessible to them." This noble-sounding purpose conveniently ignores the fact that those libraries' (legally-acquired and paid-for) digital collections are still fully available.

If your book is included in the National Emergency Library, and you don't want it there, the IA will graciously allow you to opt out (another inversion of copyright, which is an opt-in system).


Hopefully they'll be more responsive than they were in 2018, when I sent them DMCA notices that they ignored. Or later, when they began rejecting writers' takedown requests by claiming that the IA "operates consistently with the Controlled Digital Lending protocol.”


I've covered this question above, but I want to highlight it again, because it's such a persistent objection when this kind of infringement occurs: Brick-and-mortar libraries lend out books for free, so how are the IA's "library" projects any different?

A few reasons.

- Brick-and-mortar libraries buy the books they lend, a separate purchase for each format (hardcover, paperback, ebook, audiobook, etc.). The author gets a royalty on these purchases. The IA seeks donations, and lends those. Authors get nothing.

- Brick-and-mortar libraries lend only the books they purchase. They don't use those books to create new or additional, un-permissioned lending formats. That's exactly what the IA does. Moreover, one of its additional lending formats is riddled with OCR errors that make them a chore to read. Apart from permission issues, this is not how authors want their books to be represented to the public.

- People who advocate for looser copyright laws often paint copyright defenders as greedy or mercenary, as if defending copyright were only about money. It's worth remembering another important principle of copyright: control. Copyright gives authors not just the right to profit from their intellectual property, but to control its use. That, as much as or even more than money, is the principle the IA is violating with its library projects.

UPDATE: It appears that the IA--on its own initiative--is removing not just illegally-created digital editions in response to authors' takedown requests, but legally-created DAISY editions as well, even where authors don't ask for this (DAISY is a format for the visually impaired, and like Braille, is an exception in copyright law and is also permissioned in publishing contracts).


It did the same thing in 2018, even where the takedown requests specifically exempted DAISY editions. I don't know if the current removals reflect expediency or possibly are just a kind of FU to writers (and, indirectly, to disabled readers), but if you send a removal request to the IA, you might consider specifically asking them not to remove any editions for the blind and disabled (which, again, are legal for the IA to distribute).

UPDATE 4/2/20: The Authors Guild has issued a statement encouraging writers to demand that the Internet Archive remove their books from its National Emergency Library. The statement includes instructions on what to do, along with a sample DMCA notice in the proper legal form.

UPDATE 4/8/20: SFWA has issued a statement on the National Emergency Library, describing the legal theory of Controlled Digital Lending as "unproven and dubious". (A link to SFWA's DMCA notice generator is included.)

[U]sing the Coronavirus pandemic as an excuse, the Archive has created the “National Emergency Library” and removed virtually all controls from the digital copies so that they can be viewed and downloaded by an infinite number of readers. The uncontrolled distribution of copyrighted material is an additional blow to authors who are already facing long-term disruption of their income because of the pandemic. Uncontrolled Digital Lending lacks any legal argument or justification.

UPDATE 4/9/20: The Chairman of the US Senate Subcommittee on Intellectual Property, Thom Tillis, has sent a letter to the Internet Archive, pointing out the many voluntary initiatives by authors, publishers, and libraries to expand access to copyrighted materials, and expressing concern that this be done within the law. 

I am not aware of any measure under copyright law that permits a user of copyrighted works to unilaterally create an emergency copyright act. Indeed, I am deeply concerned that your "Library" is operating outside the boundaries of the copyright law that Congress has enacted and alone has the jurisdiction to amend.

The letter ends by punting "discussion" until "some point when the global pandemic is behind us." So, basically, carry on and maybe at some point we'll talk.

UPDATE 4/15/20: Internet Archive founder Brewster Kahle has responded to Sen. Tillis's letter, claiming that the National Library is needed because "the entire physical library system is offline and unavailable" (even though libaries' legally acquired digital collections are still fully available) and that "the fair use doctrine, codified in the Copyright Act, provides flexibility to libraries and others to adjust to changing circumstances" (there's no such language in the actual Fair Use statute).

Kahle also notes:

In an early analysis of the use we are seeing what we expected: 90% of the books borrowed were published more than ten years ago, two-thirds were published during the twentieth century. The number of books being checked out and read is comparable to that of a town of about 30,000 people. Further, about 90% of people borrowing the book only looked at it for 30 minutes. These usage patterns suggest that perhaps that patrons may be using the checked-out book for fact checking or research, but we suspect a large number of people are browsing the book in a way similar to browsing library shelves.

But this is hardly a compelling argument. Large numbers of these books are certainly still in copyright, and many are likely still "in print" and commercially available (in digital form as well as hardcopy). Just because a book was published more than ten years ago or prior to 2000 doesn't magically cause it to become so hard to find it must be digitized without permission in order to save it. "But they're older books" sidesteps, rather than addresses, the thorny copyright issues raised by the IA's unpermissioned scanning and digitizing.

This passage also tacitly confirms the IA's abandonment of the one-user-at-a-time restriction that is a key feature of the rationale for the Controlled Digital Lending theory. If the basis for your enterprise is a legal theory whose strictures can be jettisoned at will, how credible is that theory really?

Kahle also claims that "No books published in the last five years are in the National Emergency Library". As it happens, the example I provide above (Katherine Harbour's Nettle King) handily disproves this statement: it was published in 2016, and was digitized by the IA in 2018 (you can see the scan here). I seriously doubt it's the only instance. Either Kahle is being disingenuous, or he doesn't know his own collection.

As a sop to creators, Kahle reiterates that concerned authors "need only to send us an email" and their books will be removed. As I've pointed out above, this is yet another inversion of copyright law, which explicitly gives creators control over the use of their work. In other words, it's the IA, not authors, who should be the petitioners here.

UPDATE 4/16/20: This terrific, comprehensive article from the NWU's Edward Hasbrouck examines the multiple ways the Internet Archive is distributing the page images from its unpermissioned scanning of print books--"[o]nly one of [which] fits the Internet Archive’s and its supporters’ description of so-called Controlled Digital Lending (CDL)."

Bombay To Barcelona Library Cafe in Marol and a tray of herbs

While many high-end restaurants in the city are struggling to execute the farm-to-table experience, street kid-turned-author Amin Sheikh has found a way to add fresh herbs into the fare prepared at this four-month old Bombay To Barcelona Library Cafe in Marol. Sheikh, who launched the café to help provide employment to street boys and girls and give back to society, has installed a vertical garden in the premises. “At the café, everything is made-to-order.

We wanted to enhance the organic experience by adding fresh produce,” says the 35-year-old, who received the modular, four-tier, self-watering system from the Mumbai-based start-up Enverde, specialising in urban farming. The owners happen to be regulars at the cafe.

“I bought herbs like basil, lemongrass, parsley, oregano, coriander and even spinach from a nursery at Bhavan’s College, and planted them last week. We get ample sunlight so we will wait for the plants to grow and then use them in the food,” informs Sheikh, who had earlier visited farmers’ markets but found the produce too expensive.

The café was launched with the funds Sheikh had gathered from the sale of his autobiography Bombay Mumbai Life Is Life I Am Because Of You (self-published in 2012), which captures his gritty success story. Run by seven staffers, it serves Spanish tapas, Spaghetti, sandwiches, rolls, muffins as well as Indian fare — all the dishes are priced under `200. “A friend of mine in Spain, a chef, just finished a nine-day training with the boys,” shares Sheikh, who plans on launching the café in Barcelona too.

Time: 10 am to 10 pm
At: 3 and 4, Gold Nest Housing Society, Marol Naka, Andheri (E)
Call: 9820212029

Patrick Jenkins and guests discuss Lloyds Bank and its offshore banking problems, the latest on the regulatory tests facing Facebook's Libra initiative, and how banks have fared in this year's US Fed stress tests.

Contributors: Patrick Jenkins, financial editor, Nick Megaw, retail banking correspondent, Hannah Murphy, technology correspondent, and Kiran Stacey, US regulatory correspondent. Producer: Fiona Symon

 

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Patrick Jenkins and guests discuss Facebook's recent talks with the world's central bankers on its plans for a digital currency, whether the UK's challenger banks can maintain their astonishing rate of expansion, and a potential scandal at JPMorgan as three of its metals traders are charged with market manipulation. With special guest Tom Merry, managing director at Accenture Strategy.

All FT stories will be free to read on Wednesday September 18th when there will be a paywall freeze. Here are some recommendations to get you started:

ECB prepared to cut rates again, says its chief economist

Swedbank admits to money-laundering failings

https://www.ft.com/content/c65b32d8-d648-11e9-a0bd-ab8ec6435630

Contributors: Patrick Jenkins, financial editor, Mehreen Khan, Brussels correspondent, Nicholas Megaw, retail banking correspondent, and Henry Sanderson, commodities correspondent. Producer: Fiona Symon

 

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David Crow and guests discuss Standard Chartered chief Bill Winters' 'voluntary' pay cut after a dispute over his pension allowance, Citigroup's confidence in the City of London regardless of the outcome of Brexit, and gathering clouds for Facebook's much hyped digital currency, Libra. With special guest David Livingstone, chief executive of Citigroup in Europe, the Middle East and Africa.

Contributors: David Crow, banking editor, Stephen Morris, European banking correspondent, and Laura Noonan, US banking editor. Producer: Fiona Symon

 

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Peter Aspden visits the basement treasure-house where recordings of Florence Nightingale, 1940s electronica and other rarities are stored alongside some equally exotic audio technology  

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Stuart Levey, known for tough enforcement of sanctions on Iran, will head digital currency project