Updated October 17, 2000

THE CRIME.

I recently experienced something I hope no other writer ever will—but that's too optimistic to be possible. But, as I will point out in this article, if you take care of a few details, no pirate can ever really win!

In the late afternoon of Thursday, May 13, 1999, I did a little web surfing. I have published some of my fiction on a webplex that I share with my web partner Brian Callahan, Clocktower Fiction. The material, including three complete novels, has been registered with the Copyright Office of the Library of Congress, and has been available for free download since 1996. Thousands of readers from over 60 countries have read and enjoyed the material without a single problem—ever—until this ugly day.

Sometimes I do searches on my own work to see how many other websites have linked with me. Usually I get a number of results including my own pages, and then a sprinkling of sites that have us linked. One of the results that day looked a little different: Heartbreaker by Abcd Efghijj (I'm not going to name names, for reasons I'll explain below). I almost didn't bother clicking on it—there are at least two other novels and a number of record albums out there with that title. My own novel Heartbreaker, 600 pages in manuscript, is dark SF. I'll offer some interesting comments about it below. Anyway, I was just puzzled enough to click on the link.

What happened next is something I'll never forget. It's a feeling you have to experience to understand it. I compared it to rape in an email, but was chastised by a lady who correctly pointed out that I had not been physically violated, mutilated, put in danger of getting AIDS, and other ravages. However, the word violated may sum it up somewhat.

My blood, my entire body, ran cold when I saw the download page of my novel Heartbreaker with another individual's name on it. My eyes swam for about a minute, trying to focus. Here was unmistakeably my download page, taken straight and verbatim from Clocktower Fiction. Everything was identical, except another person's name floated where mine was supposed to be.

Here is a 120,000 word novel in which I invested several years of my time, my love, and my passion. My family sacrificed the time with me that I spent writing Heartbreaker. My writer's group listened patiently for a year and a half as I read a chapter every Tuesday night. As a working stiff, I have to get up every morning and join the rat race. I long ago developed techniques for working on my plots while driving to and from work, while going to the bathroom, etc. ... anything to wring an extra hour of writing out of the day. There were many mornings when I went to work tired, on 5 or 6 hours of sleep, after writing from 10 p.m. into the wee hours when everyone was asleep and I could concentrate. Why do I recite this litany of sacrifices, at the risk of sounding like a whiner? Because I want to convey a sense of what I invested into this novel and the others. It's not just the time and effort—the fact is that the characters (perky obit writer Mary-Shane MacLemore, her wonderful cancer-inflicted son Kippy, and the rugged and brilliant zoologist Roger Chatfield among them) have become part of my life. I love them. They are a part of me, and I am a part of them. You can understand, therefore, how I felt when I found this personal space violated.

ACTION—FAST AND FURIOUS!

What happened next kind of surprised me in a very positive way. My situation appears to have worked out—but everyone's will end as well as mine seems to have (knock on wood).

I emailed a few friends to tell them of my discovery. Each email was a shaken cry for help. I had no idea, really, what to do, but I wanted to first have witnesses. If I ever brought Mr. Abcd Efghij (not his real name) to court, I didn't want him to deny it had ever happened. Pixels are evanescent—here one moment, gone the next. I also printed out copies of everything on his website that pertained to me—the index page, on which he claimed to be a novelist, and on which he listed Heartbreaker as one of his novels—and the top of the dowload page, where he had substituted his name for mine. Also, I went back in my email records (I'm a squirrel who stores just about everything, and lucky for me I did!) and found the exact moment in time when he downloaded my novel, on January 11, 1999. Not only did he leave his email address, but his name, his city, and other items.

I didn't really want him to know yet that I knew. I wanted to tighten a noose around him—find out his phone number, his home address, his place of work, the whole magilla. It's amazing how aggressive a privacy loving guy like me can get when confronted with what amounts to a burglary of his home! Fortunately, I didn't have to expend a great deal of energy... my friends on the Web did it for me.

My long-time good friend and talented guy A.L. Sirois (Critic At Large for Deep Outside SFFH and SFWA member) immediately alerted a number of people in the late afternoon and evening of Thursday, including his web ring, all of whose members are writers and therefore keenly sensitive to my problem.

My major concern that evening was to check through my records and ensure that all my copyright information was up to date. Any writer publishing on the Internet should make sure he or she has covered their claim to ownership. In this article, I cannot claim to give legal advice. I can only share with you my laymanly understanding of the rights and the laws involved. Go directly to the website of the Copyright Office of the U.S. Library of Congress for information, or consult a knowledgeable lawyer. The Copyright Office website is very clearly written and will help you a great deal, so take the time to read what's there.

By morning, I had my copyright situation in hand. When I logged in to the Web, the first thing I did was to visit Mr. Abcd Efghij's website... and lo and behold, I was amazed to find that my novel was gone. I thought this was too much of a coincidence to have just happened...and I was right.

It turns out that several members of Al's webring went to the guy's site and Y E L L E D at him and his ISP, so successfully that he immediately removed my work. Also, by noon, his ISP had flushed his whole website down the toilet, apparently in response to a brisk threatening email from me, and the yelling of the webring. Parts of the website appear to have surfaced again, but he'd better believe there's a group of people who will be watching him like hawks.

This young man was also passing himself off as a director of a major urban writers' group, and I notified them. I haven't heard back, but I can picture the members of that group on their way to his house that night carrying torches like the villagers in that old Frankenstein movie.

Most amazingly, one of the first posts to me that morning was from a First Amendment and intellectual property rights lawyer in the Midwest, who offered to represent me for free...pro bono, almost, except that he was going to generate some internal billing and, if we went to court, he'd also sue Mr. Abcd Efghij for the half-hour phone call that morning, and any other billable expenses. This lawyer also gave me some advice that I'll pass along in this writing.

Armed with free representation, and therefore not worried about having to spend thousands of dollars to take Mr. Abcd Efghij to court, I wrote a brisk but polite email demanding that he (a) remove his name from my novel; (b) remove my novel from his website; (c) email me explicitly stating his intention to comply with these requests; and (d) that he apologize to me for what he did to me.

I was pleased to hear from him almost immediately. I think I was right in my basic assumption that he was a young man who had done something foolhardy, in bad judgment, not realizing the implications. He apologized profoundly, gave a somewhat lame explanation (as I recall from my own youthful hijinks, those explanations generally are lame), and promised not to repeat his actions. Judging by the fact that he apparently had not tried to promote my work any further (like selling it in New York) I accepted his apology and his promise and I will let it go at that unless other consequences arise. I don't want to mention his name for several reasons. I don't want to be vindictive; he's remedied the problem as best he could, and I have forgiven him; had the damage been worse, I would not be so ready to forgive. Also, I don't want to give him the publicity, thereby setting a precedent where a malefactor stands to gain from his notoriety. Enough is enough.

I was in the bookstore yesterday, several days after all this, and a man next to me was mumbling to himself as he read titles... As coincidence would have it, he mumbled the word "Heartbreaker," and my own heart nearly stood still. I glanced over, and there was the Louis Ferrigno novel by that title, a recent release. Whew!

Updated May 25, 1999: It's been about two weeks, and the waters are still roiling. Mr. Abcd Efghij has been expelled from the prestigious writer's organization to which he belonged, and I've been asked to provide documentation of his emails to me for their protection. The consequences for piracy can be severe—he'll always have people watching over his shoulder, and he has put a considerable dent in his name—but to some extent, many people end up suffering because of the actions of people like this.

PROTECT YOURSELF

I feel lucky that it didn't turn into something far worse, like a major battle over who actually wrote my novel. Imagine that! You could put as much time and effort into a book as I did, and have some smut-bag challenge you in court, calling you a liar and a thief, when he or she is those things. That's good reason to protect yourself.

One important thing to understand is that the Copyright Office in no way imparts a copyright to you. The Copyright Office only exists to register an existing copyright. It's very simple—you can download a one-page form from their website, fill it in in 5 minutes, and mail it to them with a check for $20. After a few months, they'll send you the registration.

How do you create your copyright? By writing your story. It's that simple. Under current law, when you create your work, the bundle of rights known as copyright belongs to you. It's important to point out that the U.S. is a signatory to the Berne Convention, as are many of the world's countries, so you also have an automatic international copyright that can be registered (at the L.o.C. Copyright Office) and defended at home or abroad.

You've seen how easy it is for someone to steal your intellectual property, especially if it's published on the Web. What can you do to protect your rights? One way is to register your work with the Copyright Office. Another way is to register your work with the Writers Guild of America, West, Inc. 7000 West Third St., Los Angeles, CA 90018-4329. Their telephone number is 1-(213)-782-4500. Call their number to listen to a lengthy and detailed recording about the facts. When last I registered a piece with them in 1998, it cost $20, same as the L.o.C.

The lawyer with whom I spoke recommended another method that may be cheaper and quicker. According to the gentleman, you should write a notice stating that you are the creator of [name of your work] finished on such and such a day. You should put your work on a floppy disk; then take this notice, the floppy, and a printout of the first three or so pages (or your whole work, if it's not too large) to a notary public. Updated May 25, 1999: For little or no cost at your public library, or a small fee at a bank, you can have notarized record of your creation. WARNING: In Spanish speaking neighborhoods, people may see signs that say Notario. This is a big issue in the legal profession now, according to my sources, because a notario is ordinarily a lawyer in Spanish-speaking countries. Don't confuse a lawyer with a notary public.

The key in all things is that the date must predate the time when someone is challenging your creation. In other words, if you copyright your work after you discover it's been lifted, it's probably too late for certain of the statutory protections (up to $150,000 in damages for wilful infringement, etc.—Mr. Abcd Efghij or any other would-be pirate out there, please note!).

Updated May 25, 1999: I've been advised that the following method is a myth—so don't use the following method. It has little or no value for copyrights, so the notary method is probably cheaper, and highly recommended. Another method of self-protection that I've heard of is packing your story in a sealed envelope, going to the Post Office, and sending it to yourself via Registered Mail. You'll then have to sign for it. Don't open it when you receive it, obviously, but stash it away in case one day you have to use it. It will then bear the U.S. Postal Service seals on it as a matter of evidence.

How long is your copyright good? According to a recent Library of Congress news release (on their website), under the Sonny Bono Copyright Term Extension Act, passed by Congress and signed into law by the President on October 27, 1998, a work you create now will be your property for the rest of your life, and belong to your estate for 70 years afterwards.

FINDING THE PIRATES

So how do you find out someone has stolen your work? If you have published something on the Web, you should regularly (once every month or two) do a search using every search engine available to you. At Net Center, you can use (at this writing) SNAP, LookSmart, NetScape, Lycos, Excite, Infoseek, Open Directory, and GoTo. You can also do a search at Alta Vista.

A.L. Sirois recommends using HotBot because there you can search for a literal text string. For example, suppose someone has stolen your novel and changed the title, something Mr. Abcd Efghij did not do. Searching on your title might be fruitless. However, searching on "and then she opened the door and held the knife high" might work for you. It's not exactly that simple, but HotBot has online help that assists you. HotBot steers you to several of its search partners including The Electric Library and the Barnes & Noble website. You will undoubtedly find other ways to search on your text. Don't confine yourself to the main characters either, because a clever thief may change names by a global.

Now we come to a point that the lawyer told me about. A thief may use this ploy to try and diminish the scope of what he has done: "Well, it's a free novel published on the Internet, so it must not be any good [or "it wasn't good enough to get printed"], so I don't feel I've taken anything of value." Yeah, right. I've already belabored above what it cost me to write this novel. The fact that it's free on the Web doesn't mean it has no value. For one thing, it has incalculable value to me, from the standpoint of what I invested alone. Secondly, there's nothing to say that a publisher may not buy it yet—it's one of hundreds of very good works that have not yet cut the final competition to get into the squid-spit-&-tree-cadaver (SS&TC) print medium. Thousands of people around the world have read my novel Heartbreaker, and many of them have written their raves to me.

For example, during the same week when Mr. Abcd Efghij stole my novel, one of the legitimate downloads went to a gentleman who sent me this email a few weeks later: I just finished reading Heartbreaker and wanted to let you know how much I enjoyed it. You've combined the elements of science fiction, mystery and romance in just the right measure to make one very compelling tale. The characters were developed well; your style & pace kept me coming back chapter after chapter until I reached the (most satisfying) ending. I hope many other fans get the chance to enjoy this very entertaining novel. Congratulations, Gary K.

This kind of testimony would be enough, I think, for a jury to award you major damages if a thief steals your work. Testimony like this for my novel, in fact, speaks for the potential value of all works published on the Web. My novel Heartbreaker is no less valuable than many novels you'll find on the bookshelves at the library. It's just a bit layered and intricate, and not for every reader, as I've learned from the comments I've gotten back over the years. Oddly, I was encouraged about Heartbreaker recently when I saw the movie The Matrix. It's been my experience with Heartbreaker that the literal-minded cannot understand it (including at least one college English professor who read the book, loved it, but hated the ending). It takes a mind capable of handling metaphor to get the kind of reaction Gary K. did. When I saw The Matrix, I felt encouraged that perhaps audiences are growing more comfortable with virtual realities. Note, at the same time, that I wrote the first draft of Heartbreaker in 1990, before the public at large had really heard of virtual reality. Maybe VR was in the air at the time. One of the peripheral inspirations for part of Heartbreaker was actually Stephen King's The Shining, in which Jack Nicholson's character confronts his ultimate nightmares in (what we might today call) a virtual bar layered over the closed, ghostly bar in the abandoned hotel. In any event, any novel published on the Web should be given the same legal status as a novel published in the print medium.

WHY PIRATES CAN'T WIN

I have a theory: For a pirate to be successful, he must have wide findability, and thus earn maximum reward (recognition, cash, whatever). However, as his (or her) findability goes up, so does the likelihood that you'll find him if you do regular, diligent searches. Then, if you have laid your ownership trail carefully, you can nail him. Write to his ISP. Write to anyone he has linked on his site. Have your friends go Y E L L at him. At this writing, there are individuals prepared to help you if your intellectual property rights are infringed. This may result in the thief's going to prison and paying you hefty fines over $100,000. We may not always catch the small fish—a guy who steals material to fatten up his pathetic empty portfolio or to impress his friends—but I'm certain we can always nail the pirate who seeks wide recognition for his site. Then too, like this individual, he will probably suffer long-term damage to his name in ways he can't even imagine, like losing friends, being ousted from organizations, perhaps even losing a job. All intellectual property pirates ought to read this and reconsider before they commit their crime.

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