I know I’m arriving late to this party. It’s almost Thanksgiving, but it was back on November 3 that two Russian nationals—Anton Napolsky and Valeriia Ermakov—were arrested in Argentina at the request of the United States on charges of criminal copyright infringement, wire fraud, and money laundering. Concurrent with the arrests, authorities seized 241 domains controlled by the book piracy enterprise the pair allegedly operated called Z-Library. According to TorrentFreak, the repository has migrated, at least in some form, to the dark web.
The indictment against Napolsky and Ermakov was unsealed in a Brooklyn, NY court on November 16, and while they await likely extradition to the U.S., author and publisher organizations and other creators’ rights advocates applaud the efforts of the law-enforcement agencies involved with the investigation. My friend Neil Turkewitz notes, “I have been operating in the copyright world for nearly four decades, and I could probably count on one hand the number of times that a piracy story focused on individual creators rather than the much maligned ‘Big Media.’”
True. Not that “Big Media” piracy is justified, but it is substantially harder to fool oneself that book piracy does not directly harm individual authors, who generally make less than a living wage for their writing. In a statement released by the Authors Guild (AG) praising the interdiction of Z-Library, CEO Mary Rasenberger states, “We owe a tremendous debt of gratitude to the U.S. Attorney’s Office for the Eastern District of New York and to the FBI for all of their hard work in not only shutting down the site but also finding and apprehending the perpetrators. We also thank the U.K. Publishers Association and international authorities who assisted in the investigation, as well as the authors who assisted us by filing statements reporting piracy of their books on Z-Library.”
I will decline to wade again into the morass of rationalizations for piracy that predictably erupted on social media when Z-Library was taken offline. That story never changes. Though, perhaps the rhetoric of the pirates themselves changes—at least a little. “There is a growing — and disturbing — trend of pirate operations masquerading as libraries to manipulate and evade the law,” states Lui Simpson, Senior VP, Global Policy for the Association of American Publishers (AAP). “This action [against Z-Library] sends a clear message that industrial scale infringement will not be tolerated, no matter what the perpetrators call themselves.”
Maybe “library” is the new “sharing service”? Simpson is right, of course, that it doesn’t matter. A pirate operation by any name will still smell like a criminal enterprise, and in case you’re curious about when copyright infringement may be deemed “criminal,” the basics are as follows: The infringement must be willful and for purposes of commercial or private financial gain; or the works infringed must have a retail value of $1,000 in any 180-day period. That’s not a very high bar, though criminal copyright indictments are typically brought against large-scale, blatant operations like Z-Library, whose estimated 8 to 11-million books it made available obviously exceeds $1,000 by orders of magnitude.
Further, traditional online piracy models demonstrate that the infringer does not have to profit directly from trade in the infringed works themselves. One can copy and distribute works without license and either cross the $1000 threshold (easily), or one can commercialize the traffic generated by “giving away” unlicensed works, which creates a nexus between the infringing activity and commercial/financial gain for the infringer. Historically, the pirate sites made most of their revenue from the online advertising system, but when some of those avenues were closed off by the legit ad industry, the site operators pivoted to various all-you-can-eat subscription models and malware as sources of revenue.
Of course, one does not need to operate a Russian pirate network to engage in illegal copying and distribution of books while telling the public the enterprise is a “library.” Internet Archive calls part of its operation an “Open Library,” even though it does not meet the definition of a “library” under the statute and, more importantly, despite the fact that it does not license in-copyright eBooks but instead produces unauthorized eBooks and makes them available without permission. And it does this under a model that is legally unfounded and operationally so murky as to make anyone wonder exactly how the money flows throughout the organization.
From the author’s perspective, the potential harm caused by IA’s “Open Library” is hardly distinguishable from the harm caused by a Z-Library. So, while IA may not be engaged in criminal copyright infringement, its broad-based efforts to undermine copyright are perhaps even worse. An enterprise like Z-Library will cause harm until it is shut down. What Internet Archive and its friends want to do is to strip copyright rights from authors forever. And I would call that criminal in the colloquial sense, if not in the legal one.
