In 2020, Amazon teamed up with publisher Penguin Random House and authors including John Grisham, Scott Turow and Lee Child to sue several pirate ‘Kiss Library’ eBook sites operating out of Ukraine.
Curious as to how such a lawsuit might progress, we monitored every filing in the case. Over time it became extremely clear that the plaintiffs were going to have to work extraordinarily hard to get the matter to trial, let alone recover anything from the elusive defendants.
Late December, however, the plaintiffs, which included members of the Authors Guild, prevailed after winning a $7.8m default judgment. But that win, the authors say, only serves to highlight the problems caused by foreign-based pirate sites.
Authors Celebrate Hard Fought Win
In a new opinion piece published at The Hill, Grisham and Turow summarize some of the undoubted difficulties the lawsuit encountered, likening the battle to those faced by scientific publishers in respect of Z-Library and LibGen which “continue to operate openly and brazenly.”
“Every day, countless numbers of books, including ours, are stolen and sold or given away illegally over the internet. As a result, authors and the publishing industry as a whole hemorrhage large amounts of revenue each year,” they write.
“Book authors earn their incomes from legitimate sales of their books, as a percentage of each sale. When sales are replaced by pirated copies, authors earn a lot less. Piracy steals from us, not only the value of our labor, but the years we spent honing our craft and the personal sacrifices we make along the way.”
In respect of the judgment, the authors welcome the maximum $150,000 per work damages awarded by the court but quite rightfully question whether they will ever see a penny of that. What they want now is more action from the likes of Google, who they accuse of facilitating access to infringing works. They also want Congress to step up funding for criminal enforcement in copyright cases.
Congress and Google Must Do More
With around 90% of the search market, Google is regularly criticized by rightsholders for allowing infringing content to appear in its search results. No that the company doesn’t take action, however. It has removed billions of reported infringing links and since 2012 has been downranking pirate sites, something that hit torrent portals particularly hard.
Grisham and Turow don’t directly reference any of these efforts. Instead they cite lobbying efforts by the Authors Guild to seek action from Congress to change copyright law in a way that compels services such as Google to completely delist “notorious foreign-based piracy sites”, rather than simply reducing their visibility.
“Such measures would spare authors and other creators the enormous costs of suing bad guys like Kiss Library overseas,” they write.
What do the Authors Guild Want?
The Authors Guild’s position is largely in line with those of the MPA and RIAA, who believe that the DMCA is no longer fit for purpose. The whack-a-mole game of taking down URLs only for them to reappear under another URL is one aspect they believe can be addressed by narrowing safe harbors for service providers.
However, that type of action wouldn’t necessarily help to tackle dedicated ‘pirate’ platforms that often ignore DMCA takedown notices completely. In these cases the Authors Guild says that pressure needs to be applied to search engines including market leader Google.
“The Authors Guild strongly supports the use of website blocking by search engines (also called ‘delinking’ in the search engine context) after a certain number of takedown notices have been issued against a particular site and it is clear that the site is devoted to piracy,” they write (pdf).
The Authors Guild also wants Congress to require online service providers of a certain scale (over $10m in annual revenue, for example) to implement “filtering, fingerprinting, and other prophylactic technical measures”, a request that’s broadly in line with the measures currently under scrutiny in the EU.
Broadly speaking, the Authors Guild believes that existing copyright law is completely inadequate against modern threats but the background to the Kiss Library lawsuit paints a slightly different picture.
Plaintiffs Lawsuit Was Almost Immediately Effective
In their opinion piece Grisham and Turow note that the “most important thing is that the Kiss Library network of dozens of sites is now down” but that has long been the case. In July 2020, around the time that the original complaint was filed, all of the domains in the ‘Kiss’ operation were taken down, presumably in response to the legal action.
Just a day after the complaint was filed, a Washington court issued a temporary restraining order designed to cripple Kiss Library. Without the defendants being heard, domain registries and registrars, including Tucows Domains Inc., Whois Privacy Corp., and NameCheap, Inc., were ordered to take action against all of the defendants’ domains under their control, rendering them “inactive and non-transferable” pending further instruction from the Court.
A similar order was granted requiring email services, social media services, search engines and other online providers to disable service to all of the defendants’ websites. In August 2020, the injunctions, which also covered banks, payment processors, credit card companies, advertisers and search engines, were made permanent.
The plaintiffs were also granted permission to take down any ‘mirror’ sites that may have surfaced to take up where Kiss Library left off.
While there can be little doubt that the proposals to tighten the DMCA to bring greater liability for service providers would be welcomed by most copyright holders, the Kiss Library lawsuit actually shows what can be achieved when action is taken under existing law.
The final money judgment is of course noteworthy, but the crucial matter of infringing content being made available illegally was dealt with in short order and more importantly at the actual source.
And, with no illegal ‘Kiss’ sites remaining online, there was nothing further for Google to index.
