Go Go OCILLA! or, I Saw It Coming But It Was Too Big To Dodge

It had to happen eventually, I suppose, though I still don’t see why. The Anime Encyclopedia, a book that took several years to write and update, has been stolen online.

I’m as angry as anyone would be if a slice of their paycheck had just been removed without so much as a by-your-leave – and that’s exactly what has happened. A slice of my income comes from royalties – payments from the ongoing sales of my books. Making my work available free reduces my income. My publisher, co-author and I should decide if giving The Anime Encyclopedia away free is OK, not some unknown person hiding behind an Internet alias.

There has been a considerable media fuss around Google’s proposal to digitise authors’ works and charge for access to them, but at least Google plans to pay owners and creators a share of the profit from downloading their works. Digital copyright law encourages Internet service providers to facilitate theft of authors’ income, because they have no liability.

Ever since 1998, when the Digital Millennium Copyright Act was signed into law by President Bill Clinton (known in some US media circles as “Slick Willy“,) it’s been possible for websites to provide access to copyrighted material without the consent of the copyright holders while disclaiming all responsibility. The DCMA was intended to protect rights holders across a wide range of media. Unfortunately, Title II of the DCMA, the Online Copyright Infringement Liability Limitation Act,  or OCILLA, gives Internet service providers the legal (as distinct from moral) right to enable theft of intellectual property with no redress to the owner or creator. It does this by limiting the liability of online service providers for items posted on their services, providing they remove or block access to allegedly infringing material when notified.

Sounds reasonable, you might think – but read the small print. OCILLA lays down precise forms in which a request for removal or blocking access must be made, and allows only certain people and bodies to make that request.  The whole process completely fails to take account of the speed and global spread of the Internet. All requests must be made in writing to the ISP’s designated agent – so even if an infringement is picked up on the day it happens and acted on immediately, there will be at least a few days’ delay before a written notice takes effect. Meanwhile, the upload may have been re-posted from the original site to sites all over the world. Each of those sites must be identified by the rights holder and contacted separately in the same way as the original. Some may be outside relevant legal jurisdiction.

Download sites make money from advertising, because  illegal downloads generate huge volumes of traffic. The scale of data moving up and down makes it very difficult to police exactly what is on offer and to whom; it’s a good way to attract lots of young people and generate useful funds. Site owners and administrators can refuse to identify anyone who uploads material to their site unless the rights owner pays for and serves a writ – and this has to be done for each separate infringement. (Uploaders always use assumed names. They may not ALL be global terrorists, but they probably don’t want their mothers and grandparents to know they steal for fun and kudos.)

If you’re a big name author, you’re shielded from much of the loss and aggravation involved. Your Huge Publishing Corp. has a crew of specialists policing infringements. Not only will they trawl the Internet to pick up on any new infringement, but they have the resources to send out immediate cease-and-desist notices, and to take legal action against offending uploaders. Little-name authors and Tiny Publishing Inc. don’t have that much time or money.

Of course, The Anime Encyclopedia has been mined for information by most of the online info sites ever since it appeared. Writers of non-fiction expect that. A reference book is there to be referred to. But the only way the transaction works for an author is if an individual, school, website or local library buys the book before using the information. Some download sites appeal for donations so they can carry on their “work,” but don’t even think of paying creators for content.

Creators already have a perfectly good mechanism for making work available for free download. It’s called a Creative Commons Licence, a wonderfully simple and flexible instrument that enables the maker of any kind of work to choose exactly what level of access to allow and what rights to give away. I’ve used it to give educational institutions rights to use some of my work to promote and record their activities. The difference between Creative Commons and the legal latitude allowed ISPs is precisely that between gift and theft – one is the free choice of the owner, the other is imposed on the owner by persons unknown.

Creative Commons is a gift from the individual to the wider community. Uploading and downloading without creator consent is theft by the community from the individual.

Not even Bill Clinton – a man clever enough to talk himself out of most messes, despite not understanding the link between oral and betrayal – can talk me round on this one.

P.S.: The Blue Oyster Cult reference in the title is homage, not copyright infringement. History proves again and again how Nature points out the folly of men….